The national positions of the United States, France, Britain (and preferably Germany) on the refugee issue

After the First World War, a large number of refugees came into being in Europe, making the protection of refugees an international issue. In the historical development, human society has made unremitting efforts and made brilliant achievements in protecting refugees and safeguarding the dignity of its own group.

The original definition of refugee appeared in some special agreements on refugee documents issued, and the definitions of refugees in various agreements and treaties are different. Among them, the Convention relating to the Status of Refugees concluded in Geneva in 1951 (entered into force in 1954) and the Agreement relating to the Status of Refugees adopted by the United Nations General Assembly in 1966 (entered into force in 1967) comprehensively and accurately summarized the universal definition of refugees. In the 1951 Convention relating to the Status of Refugees, it was pointed out that "refugee" refers to "a person who is unwilling or unable to return to his country of origin or be protected by it because of what happened before January 1, 1951 and because he has a justified fear of persecution because of race, religion, nationality, membership of special social groups or political opinions. Or a person who has no nationality and is unable or unwilling to return to the country because he has stayed outside the country where he used to live because of the above-mentioned things. " When the 1951 Convention relating to the Status of Refugees was drafted, some countries resolutely opposed to taking on some unforeseeable obligations, and therefore, the 1951 time limit was included in the Convention. Similarly, in order to satisfy the wishes of some countries, the 1951 Convention also allows States parties to limit their obligations to the Convention to those who become refugees because of what happened in Europe. (1)

In addition, some regional conventions have further expanded and refined the refugee issue on the basis of the above-mentioned United Nations conventions. For example, the Convention Governing the Specific Aspects of Refugees in Africa stipulates: "The term refugee is also applicable to anyone who is forced to leave his habitual residence and seek refuge outside his country of residence or nationality because his country of residence or nationality has been partially or completely invaded, occupied, ruled by foreign countries or events seriously endangering public order."

According to international law, people who have been granted refugee status can enjoy special protection and assistance from the international community. Therefore, the identification and determination of refugee status is of great significance. According to the 1951 Convention and the 1967 Protocol, as a refugee, to obtain refugee status, four basic conditions must be met: first, he has left his country of origin; second, he has a legitimate fear of persecution; third, there must be five reasons for such fear: race, religion, international affiliation, and political opinions. Fourth, because of fear of persecution, they are unable or unwilling to be protected by the country or return to the country. (2)

There are two main principles for the protection of refugees established by international law, namely, the principle of non-refoulement and the principle of international solidarity and cooperation. The "principle of nonrefoulement" requires that no country shall expel or send refugees back to the territorial border where their life or freedom is threatened in any way unless there are justified reasons to believe that the refugees have other serious situations that are enough to endanger the security of the country where they are located; (3) The principle of international solidarity and cooperation requires that all countries in the world have the responsibility to strengthen unity and cooperation in the aspects of refugee acceptance, resettlement, assistance and protection, allocation of refugee affairs expenses and elimination and reduction of the root causes of refugees.

So does Lai Changxing apply for Canadian refugee status? Resnick, a lawyer of the Canadian Immigration Bureau, argued that Lai Changxing fled to the United States because he was involved in a large-scale smuggling case involving Yuanhua Company in Xiamen, China, so he was not suitable for applying for refugee status. Resnick said in his final defense to the Immigration and Refugee Bureau, which heard Lai Changxing's application, that the reason why Lai Changxing was worried about being charged in China was not political, racial or religious issues, but his economic criminal activities. The Immigration and Refugee Board is a semi-official agency and does not belong to the Immigration Department. Lai's wife Ceng Mingna and her three children also applied for refugee status. Resnick said: "There is conclusive evidence that Lai Changxing and Ceng Mingna are in charge of Yuanhua business and evade taxes by millions of dollars." She added that they were involved in serious crimes of bribery, smuggling and deception, which made their application for refugees inadmissible.

(II) Extradition

Extradition refers to an act of international judicial assistance in which a country, at the request of a foreign country, transfers a foreigner accused of a crime or sentence in its territory to the requesting country for trial or punishment.

extradition is based on treaties. The subject of extradition can only be a country, and there are three types of countries: 1. The country to which the criminal belongs; 2. The country where the crime occurred; 3 the injured country.

Among them, extradition should follow certain principles:

1. Reasons for extradition: refers to the person accused of a crime or sentenced by a certain country.

2. The principle of non-extradition of political prisoners: it has now become a universally recognized principle of international law. The principle of non-extradition of political prisoners was stipulated in the French Constitution as early as 1793. However, the definitions of political prisoners vary from country to country. Due to the principle of territorial jurisdiction, the requested country can freely decide whether to extradite or not.

3. The effect of extradition is that the requesting country can try the criminal according to its laws. However, according to the principle of "specific charges", the requesting country can only try and punish the criminal for the charges charged at the time of requesting extradition. You can't be extradited on this charge and tried on that charge.

The legal basis of extradition is the jurisdiction of a sovereign country over crimes, including territorial, personal and other jurisdictions. That is to say, the country requesting extradition has jurisdiction over the criminal who is in another country based on the basis recognized in international law. Before the 19th century, extraditable crimes were mainly political prisoners, heretics and deserters. However, due to the victory of the bourgeois revolution, a legally prescribed punishment for a specified crime and the establishment of democratic principles, the object of extradition has fundamentally changed. Countries have become extraditing only ordinary criminals. Moreover, the principle of "no extradition of political prisoners" has become an internationally recognized customary law.

Extradition is not an obligation in international law. Whether to grant extradition depends entirely on the country requested. Extradition treaties provide a basis for countries to extradite criminals. Because there is no obligation to extradite a country in international law, whether or not to extradite a criminal to the applicant country is entirely a matter for the applicant country without an extradition treaty. For Lai Changxing's case, if China and Canada have no extradition treaty, then Canada can extradite if it wants to, but not if it doesn't want to. China has no choice. Moreover, the requested country enjoys the right of asylum. The so-called right of asylum means that a country protects a foreigner who has been prosecuted and refuses to extradite him to another country. However, some scholars in Japan believe that "asylum is all a right of the state, but an individual right based on the protection of human rights, and the state has corresponding asylum obligations to him. This is the main point of view in China." (4) But if there is an extradition treaty, it will be different. Extradition treaties will generally stipulate the relevant conditions and other matters for mutual extradition of criminals between two or more countries. If the treaty promises to extradite criminals from a certain country, then extradition becomes an international obligation and must be fulfilled, and extradition cannot be refused casually without justifiable reasons.

In addition, the problem you will encounter when extraditing Lai Changxing is "the death penalty is not extradited".

The rule of "non-extradition of death penalty" has been widely recognized in the field of international extradition cooperation. According to this rule, when the requested country has reason to believe that the extradited person may be sentenced to death after extradition, it can refuse the request for extradition. As we all know. Canada is one of the countries that abolished the death penalty earlier, but there is still great controversy about the abolition of the death penalty in China. At present, the mainstream view is negative. According to Article 3 of the United Nations Model Treaty on Extradition, if the person sought has not received or will not receive the minimum guarantees in criminal proceedings contained in Article 14 of the International Covenant on Civil and Political Rights, extradition should be refused. The minimum protection mainly includes the right to legal aid, the right not to testify against oneself (or the right to silence), the right to defense, the right to appeal, the right to apply for evidence, and so on. (5)

China has always avoided directly introducing the principle of non-extradition of death penalty in the practice of international criminal judicial cooperation. In the practice of extradition, we also insist on a firm position. There are two main concerns: First, I am worried that in international criminal cooperation, China citizens who have committed economic crimes or other serious criminal crimes and fled abroad will escape punishment on this basis; The requested country will also reject China's extradition request on this basis; Second, they are worried that it will shake the theoretical basis of formulating the death penalty in China, and even lead to the abolition of the death penalty, which will worsen the domestic security situation and increase the crime rate. China's practice in Lai Changxing's case is actually to apply the principle of "non-extradition of death penalty" flexibly, that is, when extraditing between a country that abolished the death penalty and a country that retained the death penalty, the requesting country made a promise that the extradited person would not be executed. After all, a diplomatic note is a formal political commitment. Although there is no dispute in jurisprudence, in practice it undermines the unity of the legal system and equality before the law. And it is unrealistic to handle every case in this way. In the long run, it will weaken the credibility of China's diplomatic commitment.

However, China should not evade the principle of non-extradition of death penalty any more. It is very important to establish a system to implement the principle of non-extradition of death penalty through legislation, that is, to establish a mechanism to specifically implement the guarantee that the extradited person will not execute the death penalty. Internally, it can solve the problem of the unification of the legal system by legislation, and externally, it can show that China has earnestly fulfilled its commitments. In addition, it is easier for China to sign extradition treaties with more countries by solving the problem of "non-extradition of death penalty". With the extradition treaty, it is easier and more convenient to extradite criminals back to China for trial.

(III) Political asylum

Political asylum refers to the behavior that a citizen of a country requests permission to enter another country for political reasons, or requests permission to stay in that country after entering that country. Foreigners who enjoy asylum, commonly known as "political asylum seekers", are not extradited or expelled under the protection of the host country. The management of residence, migration and movement of political asylum seekers shall, in principle, be treated as ordinary foreign nationals, and may also be treated differently according to specific circumstances and their personal status.

The term asylum originally refers to people who have been persecuted in their own country or have an obvious possibility of persecution and fled abroad because of their race, religion, participation in specific social groups, political ideology, etc., and do not expect protection from their own government and are unwilling to return to their own country. Because all the above reasons are related to politics, it is called political asylum.

A country grants entry and residence to foreigners who request political asylum and gives them legal protection, which is called "asylum" in international law. A country grants asylum to someone on the premise that it will not extradite him to another country. After the mid-19th century, extradition treaties between countries generally contained provisions on non-extradition of political prisoners.

in international law, granting political asylum and refusing extradition are matters within the scope of national sovereignty. However, this is only limited to political prisoners, and ordinary criminals cannot be allowed to take refuge.

So is Lai Changxing eligible for political asylum?

Lai Changxing is worried that the reason for being charged in China is not political, racial or religious issues, but his economic criminal activities. Canadian courts believe that although they have no power to judge China's criminal justice system, it is meaningless to compare them in some aspects because of the fundamental differences between the two countries' legal systems. However, it is also believed that this case is to judge whether the applicant is a Convention refugee, so the procedure needs to analyze the criminal justice system of China. The court adopted Canada's view. In addition, the court concluded that China's judicial system has been improving for so many years, and China's judicial system will not cause an unfair trial of Lai Changxing's case, so there is no so-called "persecution".