How the Meng Wanzhou Case Imperils the US Commitment to 'Rule of Law'
What you need to know
As US-China trade negotiations continue in Beijing, it's hard not to feel like Meng is being leveraged as a 'bargaining chip' – after all, Donald Trump has admitted as much.
By Ivy Lee, California State University
Meng Wanzhou was apprehended by local police as she stepped off a plane in Vancouver en route to Mexico in December 2018. Around the same time, presidents Xi Jinping and Donald Trump were sitting down to dinner in Buenos Aires to hammer out a trade war truce.
Meng is the chief financial officer of the private Chinese company Huawei and the daughter of its founder, Ren Zhengfei. After investing extensively in research and development, Huawei has become one of the leading telecommunications providers in the world and is reputedly leading the race in the transition from 4G to 5G. The company is also an essential component of Made in China 2025, China’s plan to upgrade its industries in sectors currently dominated by the United States and other Western countries.
The Made in China 2025 initiative aims to make Chinese industries more efficient, integrated and less reliant on foreign suppliers by increasing Chinese domestic content of core components and materials to 70 percent by 2025. Although this plan is inspired by Germany’s Industry 4.0, its unveiling in 2015 continues to elicit a great deal of unease, especially in the United States where it is seen as a direct challenge to U.S. primacy in these sectors. As a mainstay of Made in China 2025, Huawei seems to have become a recipient of U.S. efforts to stymie the plan.
When news of Meng’s arrest broke, Chinese citizens were furious at what they see as a move by the United States and its Western allies to contain China’s rise. China has since detained two Canadians, presumably in retaliation for Meng’s arrest.
Canada is reporting that it acted on an extradition request from U.S. judicial authorities who allege that Meng, acting as a top official of Huawei, contravened U.S. sanctions against Iran. In honoring the extradition treaty between the two countries, Canadian Prime Minister Justin Trudeau claims Canada was simply following the ‘rule of law’.
The US extradition request is a considerable departure from past US responses to banks, both in the United States and abroad, that violated the Iran ban and were merely asked to pay fines.
But the intent of the U.S. extradition request is highly questionable. Without providing evidence to substantiate the allegations, the United States not only banned governmental use of Huawei products but reached out to warn its allies of security risks posed by the company’s close ties to the Chinese government. This is a considerable departure from past U.S. responses to banks, both in the United States and abroad, that violated the Iran ban and were merely asked to pay fines. None of the individual officers involved in the violations were arrested, charged or held accountable.
The legality of Meng’s ‘apprehension’ is also suspect. The Iran sanctions Meng allegedly violated are U.S. secondary sanctions, which penalize a third-party person, entity or country that does business with Iran against which primary sanctions are levied. They run counter to a canon of customary international law that holds that state laws should be applied with the presumption against extraterritoriality, meaning their legal reach should extend only to acts occurring within a territory over which a state has jurisdiction.
Amid burgeoning transnational entities and activities, contemporary U.S. legal opinions are more expansive in their interpretations of this aspect of customary international law. Some hold the ‘presumption against’ to be obsolete and believe it should be abandoned. Others are less extreme but claim that interpretations of territoriality should account for not only where an illegal act occurs but also whether that act has an impact on the United States. If the act is committed outside of the United States but its impact is felt inside, the presumption against extraterritoriality may not apply.
The rationale for the presumption against extraterritoriality in customary international law is clear: without it, the concept of sovereignty becomes meaningless and harmony among the community of nations a fanciful goal. It seems the United States has not taken into consideration these and other factors, such as conflict with other nations’ laws and the due process rights of non-U.S. defendants. Surely the United States cannot maintain its position when neither the United Nations, the European Union nor any other state have similar secondary sanctions.
The United States could not have reached across national boundaries to arrest Meng without a willing partner in enforcement. While Canada claimed it had no choice, it does have discretionary powers. According to the Canadian Department of Justice, ‘[e]xtradition treaties do not themselves create an obligation or a power to arrest in Canada’ and ‘merely define the basis on which provisional arrest may be requested’.
Read More: Canada Says 13 Citizens Detained in China Since Arrest of Huawei CFO
Canadian law requires the individual facing extradition to be charged with an offense that is not only criminal in the United States but also under Canadian law. Since Canada has no law proscribing third-party dealings with Iran, the Canadian prosecution charged Meng with misrepresenting to banks the relationship between Huawei and Skycom, a company accused of selling U.S. equipment to Iran. Meng maintained that they were separate entities when supposedly Skycom was an unofficial subsidiary of Huawei. Her behavior allegedly constitutes bank fraud under section 380 of Canada’s criminal code.
Would Canada have arrested and prosecuted Meng for bank fraud in Canada without the U.S. request?
Canada must also ensure that the relevant factors for seeking a provisional arrest are justified before honoring the U.S. request. But has Canada done its due diligence? More importantly, would Canada have arrested and prosecuted Meng for bank fraud in Canada without the U.S. request? In other words, has Canada exercised prosecutorial discretion or simply participated in an extraterritorial kidnapping initiated by the United States?
Sadly, if the United States is successful in imposing these secondary sanctions, it may demonstrate that might makes right. And the Meng case may come to signify how being a superpower makes it easier for the United States to contravene the rule of law.
Ivy Lee is Professor of Sociology Emeritus at California State University, Sacramento.
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The News Lens has been authorized to republish this article from East Asia Forum. The views expressed in this article are those of the author and do not necessarily reflect the editorial policy of The News Lens.
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