Published daily by the Lowy Institute

The fate of three Canadians may now rest with Donald Trump

Beijing can justifiably be concerned about the detention of a citizen, but not hold foreigners in arbitrary retaliation.

A guard tries to block photos being taken as he patrols outside the Canadian embassy in Beijing on 14 January (Photo: Greg Baker via Getty)
A guard tries to block photos being taken as he patrols outside the Canadian embassy in Beijing on 14 January (Photo: Greg Baker via Getty)
Published 22 Jan 2019 

The simmering dispute between Canada and China – building since 1 December following Canada’s detention of the Huawei executive and Chinese national, Meng Wanzhou – has now apparently placed the life of a Canadian detained in China at risk.

Canada has acted responsibility in dealing with the US interest in Meng … Beijing cannot be permitted to engage in the arbitrary detention of foreign citizens in retaliation to legitimate foreign legal proceedings.

Robert Schellenberg had previously been tried and sentenced in 2014 by a Chinese court to a 15-year jail term on drug trafficking charges. However, on 29 December the case was reopened. At retrial, prosecutors requested the death penalty, and the Dalian Intermediate People's Court has approved that request.

Canada’s Prime Minister, Justin Trudeau, has stated that “it is of extreme concern to us as a government, as it should be to all our international friends and allies, that China has chosen to begin to arbitrarily apply the death penalty.” Australia’s acting Foreign Minister Simon Birmingham has made comments supporting Canada’s position, resulting in a rebuke from China.

Schellenberg’s retrial and the imposition of the death penalty are properly being linked with Meng’s detention in Vancouver following a United States extradition request relating to allegations associated with attempting to circumvent US trade sanctions against Iran. Meng was granted bail on 11 December and the US has until 30 January to make a formal request for her extradition. The matter is due to return to court in Vancouver on 6 February.

China reacted with fury to Meng’s detention and warned of “serious consequences” if she was not released, and Schellenberg’s recent death sentence indicates how far China may be prepared to go.

Two other Canadian nationals were also separately detained in China just days after the Meng case became public. Michael Kovrig – a former diplomat who most recently has worked for the International Crisis Group, and Michael Spavor – a longtime China resident with entrepreneurial links to North and South Korea, were detained on suspicion of “engaging in activities endangering national security”.

The full extent of the allegations against the two are unclear and there has been minimal consular access for Canadian officials. In an open letter this week to Chinese President Xi Jinping, 143 international diplomats and scholars with experience and interest in China have called for the release of Kovrig and Spavor, claiming that their detention sends a message that meetings and exchanges which are the basis for serious research and diplomacy are “unwelcome and even risky in China”.

While Canada has sought to rebuff China’s criticisms of its adherence to the Canada-US Extradition Treaty and emphasised its position as a “rule of law” country, US President Donald Trump undermined that argument when in a Reuters interview on 11 December he said in relation to the Meng case:

“If I think it’s good for what will be certainly the largest trade deal ever made – which is a very important thing – what’s good for national security, I would certainly intervene if I thought it was necessary.”

This raises the prospect that the US may not formally request Meng’s extradition and highlights that the whole matter may hang on China-US trade talks. Preliminary rounds of those talks took place earlier this month and were reported as positive.

To date, Canada has acted responsibly in dealing with the US interest in Meng. Given its proximity to the US and the level of cross-border movement of peoples, having a strong extradition treaty regime is important for both countries. Canada is legally bound to act on legitimate US extradition requests. Legal irregularities are capable of being tested in the Canadian courts, and even then, a discretion rests with the relevant Canadian Minister to deny extradition in exceptional cases.

Meng’s status as a high profile Chinese Huawei executive provides her with no immunity before either the Canadian or US courts. China is also justified in expressing concern over the detention of one of its citizens by another government and making appropriate representations on her behalf as is permitted under international law. However, Beijing cannot be permitted to engage in the arbitrary detention of foreign citizens in retaliation to legitimate foreign legal proceedings.

That China has been prepared to impose a death sentence on Schellenberg, irrespective of whether that is consistent with China’s recent crackdown on drug crimes sends a clear warning to Canada that both Kovrig and Spavor could suffer the same fate.

With three Canadian lives possibly at stake, the spotlight now will turn to the US and whether it elects to pursue Meng’s extradition. Donald Trump is keen to settle his trade war with China, and while Canada has been the subject of China’s fury following Meng’s detention, the real source of Canada and China’s trouble is the US extradition request. There is every prospect that Trump may now be prepared to do a deal to secure his preferred trade outcome with China.

Such a deal would see the US drop its extradition request so that Meng would be released by the Canadians. In turn, China would be expected to exercise clemency in the case of Schellenberg, and to release Kovrig and Spavor. The fate of the three Canadians may well now rest with Donald Trump.

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