Jerome A. Cohen. Protecting Nationals Abroad: Implications of the Diayu/Senkaku Dispute. SCMP (South China Morning Post)

September 28, 2010

What can a government do when it believes a foreign government has unjustly detained one of its nationals? This month’s dangerous dispute between China and Japan understandably focused attention on their conflicting claims of sovereignty over the uninhabited islets known as the Diaoyu or Senkaku. Yet the methods used by China to free a fishing trawler captain from criminal investigation in Japan are undoubtedly being studied by countries that have similar problems in China and elsewhere.

Is there anything, for example, that the United States Government should learn from this incident about how to effectively protect Americans prosecuted in China? Should China’s success at least stimulate the U.S. to consider other methods it might use to assist one of its citizens, Feng Xue, whose ongoing prosecution in China has long frustrated American officials? A Chinese-American businessman with a University of Chicago Ph.D. in geology, Mr.Xue has been detained for almost three years for helping his American employer purchase a commercial database on China’s oil resources. After investigation and trial that violated China’s criminal procedure law, the US-China Consular Convention and international standards, Xue was belatedly convicted last July of “gathering intelligence” and “unlawfully sending abroad state secrets” and sentenced to eight years in prison. His case, which continues to be shrouded in secrecy, is on appeal.

Under pressure from Xue’s family and university colleagues, the media, human rights critics and his former employer, the US has done more than nations normally do to protect nationals victimized by a foreign country’s criminal justice system. Xue’s name is on every list of prisoners for whom the US seeks China’s release and is frequently raised in diplomatic exchanges. Instead of sending a mere consular officer to make the monthly visits to Xue permitted by the consular convention, in order to demonstrate the extraordinary importance of his case the American ambassador in Beijing or his deputy personally meets him for the limited conversation allowed. President Barack Obama himself discussed the case when meeting President Hu Jintao last November. At the UN last week, Assistant Secretary of State Michael Posner raised it with his Chinese counterpart.

What more should the US do? China, because the islets incident involved a major territorial dispute, not only mobilized economic, political and diplomatic sanctions and pointedly detained four Japanese, but it also threatened unspecified, more menacing measures, to force Japan into a humiliating repatriation of the trawler captain. To be sure, its success was hardly cost-free, arousing doubts about China’s “peaceful rise” and enhancing anxieties among many neighbors with which it has territorial disputes. It would be unrealistic and inappropriate to expect the US to emulate China’s methods.Yet the US, without bullying, can do more to draw the attention of China’s leaders to the unfair treatment of Xue and its adverse impact on Sino-American relations. A public expression of concern by Secretary of State Hillary Clinton, or even the President, in a press conference or speech is long overdue. Key members of Congress should also speak up, as should influential representatives of the American business community, which has been slow to see its own self-interest.

Would unconventional techniques also prove useful? In 1967, at the height of Indonesia’s persecution of Chinese nationals, the late Chen Yi, the cultivated Foreign Minister of a weak China riven by Cultural Revolution, resorted to poetry as well as more mundane efforts to protest violations of international law. Should Secretary Clinton wax poetic on behalf of Xue? Certainly, his suffering and that of his wife and children are not lacking in drama. China’s official press agency, Xinhua, would have no trouble turning their story into a tale of family “torture”, especially since Xue, unlike the detained trawler captain held by Japan, has actually been tortured both physically and psychologically by his interrogators.

Or should Hillary instead persuade her husband Bill to seek Xue’s rescue, building on his extraction of two convicted American journalists from North Korean captivity last year? Of course, another former US president, Jimmy Carter — not always a State Department favorite — having last month procured the freedom of a third alleged American criminal from North Korea, may now want to try his luck in Beijing. After all, it was Carter who completed the challenging task of establishing US diplomatic relations with China thirty-two years ago.

This summer’s startling Russian-American “swap” of persons accused of espionage suggests a different possibility. China has not claimed that Xue spied for the US while gathering information for the oil consulting company that employed him. Nevertheless, the US, without conceding the legitimacy of Xue’s conviction, might be able to take advantage of the “state secrets” charges against him to arrange an exchange for one or more persons of Chinese descent recently convicted by US courts of spying for China.

It is time for China’s leaders to recognize Xue’s unfair ordeal and the damage it has inflicted on Sino-American relations. In order to secure some kind of compromise leading to Xue’s release, the US need not demand an apology or compensation for the harm done to Xue. This, after all, is not a dispute over sovereignty but the justice of its exercise.

This article appeared in the South China Morning Post under the title “Across state lines” on September 28, 2010. It was published in Chinese in the China Times on September 30.  Illustration from South China Morning Post. (简体中文)   (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. He serves without compensation as an advisor to Xue Feng’s family. See also