Jerome A. Cohen and Yu-Jie Chen. Is a Rising China Losing Respect for International Law. SCMP (South China Morning Post)

April 1, 2010

Although this week’s Rio Tinto case focused world attention on China’s domestic legal system, it also raised doubts about a rising China’s adherence to its international legal commitments.

After the People’s Republic began to represent China in the United Nations in October 1971, it steadily increased its participation in the development of international law. Despite continuing grave violations in practice of existing international standards for protecting civil and political rights, the PRC’s overall direction in international law, at least until recently, has seemed progressive. Now, however, an old, nationalistic tone has begun to mark its criminal prosecutions of foreigners as well as Chinese dissidents, often explained with merely vague references to “judicial sovereignty” without further elucidation. This may reflect the setbacks that China’s domestic criminal justice system has suffered since the 17th Communist Party Congress introduced tougher policies and personnel in late 2007. This may also reflect a change of the Chinese government’s attitude toward international law in light of its growing influence on the world stage. In any event, it is a development worthy of attention.

This recent return to shrillness in PRC rhetoric and practice of international law became apparent last December when the United Kingdom government and human rights organizations lodged many pleas and then protests against the impending execution of the alleged heroin smuggler, British national Akmal Shaikh. He was denied an adequate psychiatric exam to determine whether he should be held responsible for the offense. Apparently playing more to a domestic audience than a foreign one, Ministry of Foreign Affairs spokeswoman Jiang Yu declared, without supporting reasoning, that “Nobody has the right to speak ill of China’s judicial sovereignty.” She airily rejected as “groundless” the troubling accusations that China had violated international standards as well as its own criminal law.

Moreover, when foreign governments and NGOs protested the trial of famous dissident Liu Xiaobo, who was sentenced to 11 years for exercising his international and domestic rights to free expression, the same spokeswoman – again without substantive argument – categorized such statements as “gross interference in China’s judicial internal affairs” that fails to” respect China’s judicial sovereignty”.

It was the Rio Tinto case, however, that fully revealed a seeming arrogance toward China’s international obligations. When the Australian Government sought reconsideration of PRC refusal to permit Australian consuls to attend the closed session of Australian national Stern Hu’s trial, as required by the Sino-Australian consular agreement, PRC spokesman Qin Gang, instead of attempting to defend the PRC decision through treaty interpretation, dismissed the claim by stating that “the case would be handled according to Chinese laws”. China’s “sovereignty, especially judicial sovereignty”, he said, takes precedence over its binding international agreements. This was a puzzling and dangerous comment, since China’s international agreements are voluntary exercises of China’s sovereignty and commit China to conform its domestic laws to international standards, instead of using domestic laws as excuses not to follow them.

Last July, the PRC also excluded American consuls from observing the closed trial for the alleged theft of state secrets of American national Xue Feng, contrary to the provisions of the Sino-American consular convention and despite the fact that American consuls had been allowed to observe earlier closed prosecutions of American nationals. The lack of publicity then surrounding the Xue case and the apparent failure of the U.S., which has had its own lapses in consular obligations, to protest that decision enabled the PRC to avoid a public explanation. But the spotlight on Rio Tinto left it no choice.

This is not a fuss over some minor technical point. To be a defendant in a closed prosecution in China, where even one’s nearest family is often excluded from the courtroom and where the ablest, most courageous defense lawyers operate under severe restrictions and pressures, is a nightmare. The presence of diplomats from one’s country provides not only an opportunity to hold prosecutors, judges and defense lawyers to account for their trial conduct but also at least a minimal, much-needed boost to an accused who has already been detained for months or even years prior to trial and who may understandably feel intimidated against speaking freely.

The most disturbing aspect of China’s defense of its Rio Tinto exclusion of consular observers is that it rests on a false premise. The claim that Chinese law precludes foreign consuls from attending closed trials, contrary to the explicit provisions of many PRC consular agreements, actually flies in the face of Chinese law. Since June 20, 1995, when the Ministries of Foreign Affairs, Public Security, State Security and Justice, together with the Supreme People’s Court and the Supreme People’s Procuracy, jointly issued an Instruction on the handling of foreign-related cases, it has been clear that, if a PRC consular agreement provides for consular attendance at trials, that commitment must be honored even in a closed trial and no domestic law can interfere with the international obligation. Indeed, the principle that, in Chinese law relating to cases involving foreigners, China’s international commitments trump its domestic law dates back at least to the 1987 predecessor to the still valid 1995 Instruction. This is a stark contrast with recent PRC responses, which have disregarded its own laws as well as international norms.

Edited versions of this article appeared in the South China Morning Post (Hong Kong) under the title “Law unto itself,” The Age (Australia), under the title “China rips up rule book,” on April 1, 2010,  and the China Times (Taiwan) in Chinese under the title  “中国不甩国际法?”  (繁体中文). 

Professor Jerome A. Cohen is co-director of NYU School of Law’s US-Asia Law Institute and Adjunct Senior Fellow for Asia at the Council on Foreign Relations. Yu-Jie Chen is a Taiwan lawyer and research fellow of US-Asia Law Institute.