Application of International Treaties in the Lantian Gerui Case

2025-11-26

Abstract:

In this article, we examine the feasibility of applying international treaties—particularly the “Sino-British Treaty on Criminal Judicial Assistance” and the “United Nations Convention against Corruption” (UNCAC)—in the Lantian Gerui case, as well as their potential value for the rights-protection efforts of Chinese victims. We consider that although the Sino-British treaty provides a foundational bilateral cooperation framework for the tracing, freezing and return of assets, its “non-preset negotiation mechanism” may place the requesting State in a disadvantaged position on matters of asset return. By contrast, Article 57(3)(c) of UNCAC establishes a “priority to return” mechanism which, although discretionary in nature, constitutes a “reviewable priority obligation” and can strengthen the requesting State’s value-based position and help establish a more favourable decision-making orientation in negotiations over asset disposition.

At the same time, we consider that there is no conflict between the two treaties. They may operate in a complementary “direction + vehicle” structure—UNCAC providing the negotiation objectives and value orientation, and the Sino-British treaty providing the procedural pathways and implementation mechanisms.

In addition, it should be noted that the operative space of these international treaties is not limited to the narrow domain of inter-governmental negotiation. Regardless of which path is ultimately adopted for Chinese victims’ collective rights protection, the relevant treaty provisions will continue to play an important value-guiding role, thereby helping to construct, at the level of international treaty law, a more favourable argumentative framework for the return of assets.

Preface

In the article “A Cool Reflection on the ‘Rights Protection Fever’ in the Lantian Gerui Case (II)”, we discussed the choice of collective rights protection paths for the victims of the Lantian Gerui case. As stated in that article, whether the choice of the basic rights protection path is appropriate often has a more global impact. However, relatively detailed issues such as “whether the work objectives are clear and appropriate” and “whether the bargaining tools and means are effective” also determine the ultimate rights protection effect to a considerable extent. In this article, we briefly discuss the application of relevant international treaties in this case, with the aim of providing some powerful bargaining tools for the Chinese victims in this case.

ONE、Application of the “Sino-British Treaty on Criminal Judicial Assistance” in This Case

（1）Applicability of the “Sino-British Treaty on Criminal Judicial Assistance” in This Case

China and the United Kingdom signed the “Treaty between the People’s Republic of China and the United Kingdom of Great Britain and Northern Ireland on Criminal Judicial Assistance” (hereinafter referred to as the “Sino-British Treaty on Criminal Judicial Assistance”) in 2013, which came into effect in 2016.

Article 1, Paragraph 1 of the above treaty stipulates that China and the United Kingdom “shall, in accordance with the provisions of this Treaty, afford each other the widest measure of assistance in criminal investigations, prosecutions and proceedings, including restraint, freezing, seizure and confiscation of proceeds and instrumentalities of crime”. The scope of assistance includes “conducting inquiries, searches, freezing and seizures”, “assistance involving proceeds and instrumentalities of crime”, and “other forms of assistance not contrary to the law of the Requested Party”, etc.

Article 19 of the above treaty stipulates that China and the United Kingdom “shall afford each other assistance, in accordance with the law of the Requested Party, in proceedings relating to the identification, tracing, restraint, freezing, seizure and confiscation of proceeds and instrumentalities of crime”.

Article 20, Paragraph 1 of the above treaty stipulates that “The Requested Party holding confiscated assets may, to the extent permitted by its law, return or share with the Requesting Party such assets or the proceeds of the sale thereof. The conditions and arrangements for the return or sharing of such assets and the proportion of return and sharing shall be agreed upon by the Parties”. Paragraph 2 of Article 20 stipulates that “When the assets confiscated by the Requested Party are public funds, and these assets are derived from embezzlement or misappropriation in the Requesting Party, whether or not such funds have been laundered, the Requested Party shall return the confiscated assets or the proceeds of the sale thereof to the Requesting Party, subject to deduction of reasonable realization costs”.

In this case, the above provisions of the “Sino-British Treaty on Criminal Judicial Assistance” can all serve as the legal basis for matters such as the tracing, confiscation, and return of the Bitcoin assets involved in the case.

Although from the currently available public information, the Chinese public security authorities have “conducted in-depth cross-border cooperation on pursuit of fugitives and recovery of stolen assets with British law enforcement agencies through channels such as international law enforcement and judicial cooperation”, and “are still continuing to carry out cross-border cooperation on pursuit of fugitives and recovery of stolen assets with British law enforcement agencies”, the existing public documents have not disclosed more details. Therefore, it is currently difficult to confirm whether and to what extent the “Sino-British Treaty on Criminal Judicial Assistance” has been formally applied in this case.

However, we anticipate that in the process of advancing international judicial cooperation in this case, especially on the issue of disposal of the assets involved, regardless of which international treaties will ultimately be applied, the “Sino-British Treaty on Criminal Judicial Assistance” will be a key legal basis among them.

(2) Limitations of the “Sino-British Treaty on Criminal Judicial Assistance”

On the issue of disposal of proceeds of crime assets, the aforementioned Article 20 of the “Sino-British Treaty on Criminal Judicial Assistance” also makes relevant provisions. Since this case generally does not involve “public funds”, this case should mainly apply the provisions of Paragraph 1 of Article 20 of the above treaty.

From the provisions of Paragraph 1 of Article 20 of the aforementioned “Sino-British Treaty on Criminal Judicial Assistance”, it can be seen that for the disposal of relevant assets, it simultaneously provides two paths: “asset return” or “asset sharing”, and “the conditions and arrangements for the return or sharing of such assets and the proportion of return and sharing shall be agreed upon by the Parties”.

It can be seen that in this case, assuming only the provisions of the “Sino-British Treaty on Criminal Judicial Assistance” are applied, on the issue of return of the Bitcoin assets involved, it is usually for the two parties to adopt a “broad bilateral negotiation mechanism” that “does not preset a basic path” (i.e., does not preset the path of asset return or asset sharing) and “does not preset a disposal plan” (including conditions, arrangements, proportions, etc.).

Under the above mechanism, although the two parties can conduct negotiations with seemingly equal status, from a practical operational perspective, the requesting country that “requires asset return” inevitably finds itself in a somewhat disadvantaged position in negotiations because it does not control the relevant proceeds of crime assets, and the above “broad bilateral negotiation mechanism” does not help improve the requesting country’s aforementioned disadvantaged position, and may even exacerbate the requesting country’s such disadvantaged position to a considerable extent.

TWO、Application of Other International Treaties Such as the “United Nations Convention against Corruption” in This Case

（1） Applicability of the “United Nations Convention against Corruption” in This Case

China and the United Kingdom are also both contracting parties to the “United Nations Convention against Corruption” (hereinafter referred to as the “United Nations Convention against Corruption”). Although the objects of application of the “United Nations Convention against Corruption” are mainly “corruption crimes” (for example: embezzlement, bribery, misappropriation of public funds, etc.), and from the existing information and materials, the core criminal acts in this case mainly involve fundraising fraud and money laundering, this case can still be included in the scope of application of the “United Nations Convention against Corruption”. Specifically:

Article 23 of the “United Nations Convention against Corruption” requires contracting states to criminalize money laundering under the convention and supports expanding the scope of predicate offenses for money laundering as much as possible, not limited to corruption crimes.

Article 31, Paragraph 1 of the “United Nations Convention against Corruption” stipulates that each contracting state shall, to the greatest extent possible within its domestic legal system, adopt such measures as may be necessary to enable the confiscation of: (1) proceeds of crime derived from offenses established in accordance with this Convention; (2) property, equipment or other instrumentalities used in or destined for use in offenses established in accordance with this Convention.

Article 57, Paragraph 1 of the “United Nations Convention against Corruption” stipulates that property confiscated by a contracting state pursuant to this Convention shall be disposed of by that contracting state in accordance with the provisions of this Convention and its domestic law, including “return to its prior legitimate owners”.

It may not be without controversy, but we understand that from the above provisions, it can be inferred that cases like this one, which “constitute money laundering but with predicate offenses that are non-corruption crimes”, should also belong to the offenses established by the “United Nations Convention against Corruption”. In this case, the Bitcoin assets “seized by the British side” also fall under the “assets subject to confiscation” as stipulated in Item 2 of Paragraph 1 of Article 31 of the “United Nations Convention against Corruption”, and the above Bitcoin assets should also be returned in accordance with the provisions of Article 57 of the “United Nations Convention against Corruption”.

At the same time, since the Bitcoin assets involved in this case do not involve public funds and are not proceeds from corruption crimes, this case should mainly apply the provisions of Item 3 of Paragraph 3 of Article 57 of the “United Nations Convention against Corruption”, namely: the method of handling relevant assets is “giving priority to returning the confiscated property to the requesting contracting state, returning it to its prior legitimate owners or compensating the victims of the crime”.

（2）Benefits of Applying the “United Nations Convention against Corruption” in This Case

The “giving priority to return” set forth in Item 3 of Paragraph 3 of Article 57 of the “United Nations Convention against Corruption” indicates that the return of relevant assets usually falls under the category of “discretionary return/negotiated return” and indeed the UK Home Office in its published “Framework for transparent and accountable asset return” considers asset returns under Art 57(3)(c) to be discretionary. Although it does not have the rigid binding force of “mandatory return”, it is not merely a moral initiative or an empty slogan, but a kind of “reviewable priority obligation”.

Specifically, in the circumstances stipulated in Item 3 of Paragraph 3 of Article 57 of the “United Nations Convention against Corruption”, although the requested state has discretion over how to dispose of the relevant proceeds of crime assets, the exercise of the above “discretion” shall not weaken the basic orientation and priority order of “giving priority to return”, and shall not lead to arbitrary deviation/compression of the subject/proportion that should be returned due to “discretion”. The requested state shall demonstrate in its decision-making a substantive priority assessment of “returning to the requesting state, the legitimate prior owners or compensating the victims” and explain the reasons, bearing the burden of proving that its own decision conforms to the value orientation of “giving priority to return”.

It can be seen that compared to the operational paths in other international treaties of “broad bilateral negotiation” (or even directly stipulating that “sharing in a divided manner” should be carried out), the above institutional framework of the “United Nations Convention against Corruption” undoubtedly serves as a useful supplementary instrument for the requesting state that “requires asset return”. In this case, if the “United Nations Convention against Corruption” can be applied, it will be more helpful for the Chinese side to strive as much as possible for the return of the assets involved in the case, and to block others from coveting the due interests of Chinese victims, making it a “powerful handle” for the Chinese side in this case.

THREE、Coordinated Application of the “Sino-British Treaty on Criminal Judicial Assistance” and the “United Nations Convention against Corruption”

Paragraph 1 of Article 20 of the “Sino-British Treaty on Criminal Judicial Assistance” focuses on emphasizing “bilateral equal negotiation without preset premises”, while Item 3 of Paragraph 3 of Article 57 of the “United Nations Convention against Corruption” focuses more on emphasizing “giving priority to return”. On the surface, there seems to be a certain degree of conflict between the provisions of the above treaties. But in fact, whether from the content of the relevant treaties themselves or from the rules of interpretation of international treaties, the provisions of the above two treaties belong to a relationship that is parallel without contradiction, or even mutually supplementary. Specifically:

（1）From the Perspective of the Content of Relevant Treaties, There Is No Direct Conflict Between the Relevant Treaties

Paragraph 1 of Article 20 of the “Sino-British Treaty on Criminal Judicial Assistance” stipulates that the Requested Party may “to the extent permitted by its law” return or share the assets with the Requesting Party, and the specific requirements/arrangements and proportions shall be agreed upon by the Parties. The content of the above provisions establishes the procedural carrier and authority boundaries for negotiation, and does not deny the practice of taking “asset return” as a priority objective.

Further, Article 27 of the “Sino-British Treaty on Criminal Judicial Assistance” stipulates that “This Treaty shall not prevent either Party from affording assistance to the other Party pursuant to other applicable international treaties or its domestic law. The Parties may also afford assistance pursuant to any other applicable arrangements, agreements or practices”.

From a simultaneous reading of the above provisions, it can be concluded that seeking assistance under the “Sino-British Treaty of Criminal Judicial Assistance” will not necessarily preclude the application of Article 57(3)(c) of the “United Nations Convention against Corruption”, as in our view there is no inherent conflict between the contents of the above treaties.

（2）From the Perspective of the Rules of Interpretation of International Treaties, the Relevant Treaties Also Belong to a Relationship That Is Parallel Without Contradiction, or Even Mutually Supplementary

According to Article 31 of the “Vienna Convention on the Law of Treaties”, international treaties shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose, and in a systematic integrated manner combined with “any relevant rules of international law applicable in the relations between the parties”.

In this case, what is established by Item 3 of Paragraph 3 of Article 57 of the “United Nations Convention against Corruption” is the obligation to “give priority to return” in decision-making, but it is not an automatic return order and needs to be implemented through means such as negotiation/arrangements. Paragraph 5 of Article 57 of the “United Nations Convention against Corruption” even stipulates that contracting states may also give consideration to concluding agreements or mutually acceptable arrangements on a case-by-case basis for the final disposal of confiscated property. It can be seen that the above mechanism of the “United Nations Convention against Corruption” is exactly complementary to the “negotiation” mechanism stipulated in Paragraph 1 of Article 20 of the “Sino-British Treaty on Criminal Judicial Assistance”, and the two embody a connecting relationship of “direction + supporting mechanism” (“principle + specific implementation”) rather than an oppositional relationship.

Given that both China and the United Kingdom are contracting states to the “United Nations Convention against Corruption”, in this case, the provisions of Paragraph 1 of Article 20 of the “Sino-British Treaty on Criminal Judicial Assistance” should be interpreted, under the framework of “giving priority to return” stipulated in Item 3 of Paragraph 3 of Article 57 of the “United Nations Convention against Corruption”, as a procedural arrangement for “implementing the ‘United Nations Convention against Corruption’ and refining operations”.

In other words, the “giving priority to return/compensation” established by Item 3 of Paragraph 3 of Article 57 of the “United Nations Convention against Corruption” should be taken as the negotiation objective and decision-making orientation, while Paragraph 1 of Article 20 of the “Sino-British Treaty on Criminal Judicial Assistance” serves as the procedural carrier to achieve this objective.

Therefore, in this case, the relevant provisions of the “Sino-British Treaty on Criminal Judicial Assistance” and the “United Nations Convention against Corruption” can not only be parallel without contradiction, but also play a mutually supplementary and synergistic role.

Conclusion

Through the discussion in this article, at the level of international treaties, a relatively clear framework path for “asset return” can already be seen, which is even favorable to Chinese victims in terms of objective orientation. However, there should also be a clear understanding of the limitations of the above framework path. After all, the relevant international treaty provisions discussed in this article do not set treaty obligations for “mandatory return of assets”, and the return of relevant assets still needs to be implemented through negotiation and cooperation between governments, and may therefore be influenced by multiple factors such as international political factors and the effectiveness of international cooperation mechanisms, leading to a certain degree of uncertainty in the final processing results. Moreover, the negotiation process between the above governments often takes considerable time, and is not something that can be effectively controlled by a single country, which also leads to uncertainty in the time spent on relevant rights protection.

Despite this, we understand that the scope of action of relevant international treaties, especially the “United Nations Convention against Corruption”, is not limited only to narrow areas such as negotiation and talks between governments. We believe that in the work of rights protection for Chinese victims, especially collective rights protection, regardless of whether the path ultimately adopted is “judicial procedure-led” or “administrative path-led”, the relevant provisions of the above treaties will play a very good value-guiding role and form effective assistance. Therefore, in this case, how to better safeguard the rights and interests of Chinese victims by leveraging the above international treaties is a work worthy of high attention and active exploration by all relevant parties.