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Sunday, March 21, 2010

Jerome Cohen on the Stern Hu case

Here are some comments from Jerome Cohen on my recent post about the Stern Hu case (posted here with his permission):

Don, I'm very glad to have your careful analysis spelling out the absurdity of the Qin Gang argument on behalf of MOFA. I have been taking the same position as you all week in response to inquiring Australian media and suggesting that they take a look at the Australia-China Consular Convention, which you have carefully done. The Australian Government, perhaps not wanting to affect the trial and sentencing, appears to have gone soft on its correct position that the entire trial should be open to its consular representatives. Surely it should lodge a formal protest and seek PRC correction of its action and the underlying treaty interpretation. 

This is not a minor matter from several points of view. Here I will mention only the international implications, but, as you point out, the domestic legal implications of the current PRC interpretation are also disturbing. I leave those for another day.

First, this issue of the right to consular observation of a trial comes up regularly. Indeed, the current, seemingly endless, Chinese prosecution of Chinese-American XUE Feng on grounds of illegally obtaining state secrets -- not yet(?) downgraded to commercial secrets -- raises the same issue. The USG, since nobody seemed to be minding the legal store last July when the first hearing of the case was held, apparently acquiesced in the exclusion of US consuls even though there have been earlier cases when US consuls were allowed to attend state secrets trials of American nationals in China. The US-PRC Consular Convention contains language similar to that in the Australian-PRC convention. I have expressed surprise at this USG failure to make a vigorous public response, in conversations with both US officials in the American Citizen Services office of the US Embassy and the Department of Democracy, Human Rights and Labor in the State Department, so perhaps, under new leadership, the Embassy and DRL have been pursuing the matter internally with the China Desk and the Legal Adviser's office and now with the PRC. I hope so. In such cases, where the PRC threatens Chinese defense lawyers with criminal prosecution if they reveal anything that happened at the trial-- even to family members and the family legal advisors who retained the lawyers -- consular observers are the only source for learning about the trial proceedings.

Second, all other countries should review their consular agreements with China on this point as well as others including the notice that must be given when the PRC detains one of their nationals for any reason.

Third, MOFA Spokesman Qin Gang's statement that China's "judicial sovereignty" trumps any language that it has obligated itself to in a treaty is, as Don says, ridiculous. I do not think that MOFA's Department of Law & Treaty Affairs would back this statement. Rather, if ordered to defend the court action, it would argue, however weakly, that the treaty allows China to read in an exception to the obligation to admit consular observers because of its domestic laws etc.

3. Just think how convenient the Qin Gang rationale could be. Should the USG, when confronted by the continuing PRC claim that the Taiwan Relations Act violates the sacred "Three Communiques" between the US and China regarding the status of Taiwan, dismiss that claim by stating that no one has the right to question American "legislative sovereignty", which implicitly overrides US international commitments?

4. Since the PRC began to represent China in the UN in 1971, we have witnessed a huge positive change in China's respect for and participation in the world community and its treaties. I hope we are not on the verge of a third stage in which a newly-confident and assertive China increasingly treats international law the way "super powers" have done on occasion. The PRC should focus, instead, on setting a better example in words and deeds.

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Comments

Here is my 2-bob. This type of general agreement should be revised to reflect the present dynamic socio-economic evolution of the PRC. The "new" agreement should be categorised and sub-categorised[if necessary] because the simple notion of "one prescription" FIX ALL is only a general principal. The signatory States did not foresee the diverse complications of the future. Neither did they have a system of review. There were already many instances of "contract waivering" on the part of Chinese signatories[ perhaps with the consent of Local authorities] in the past, although it may not have touched on merchandise and materials that are of grave importance to the PRC. Generally, there is a lot of "wheeling & Dealing" and enticements by both parties prior to an affirmative outcome. In fact, both sides would have done their homework and "research"/SPYING before negotiation. So, what is the moral to this STERN HU episode?

With the afore-mentioned:

1] When you deal with a private chinese company = Common Law Contract
2] When you deal with a Government Linked Enterprise = Government Law Contract

You may have to make a study of what this Government Law Contract is. Perhaps it is a mixture of their Laws of Equity, and principles of National Interest/s like Anti-espionage of Gov't linked enterprise.

Posted by: Andrew Yap | Apr 1, 2010 2:36:47 PM

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