Jerome Cohen and Yu-Jie Chen on the Stern Hu trial

Here's an interesting piece by Jerome Cohen and Yu-Jie Chen on an as-yet undiscussed aspect of the Stern Hu proceedings. I've made one very modest change in adapting it from text to web and added a link or two. I might also add that the notion that domestic laws can't be used as an excuse to override China's treaty obligations is also set forth in the 1987 predecessor to the document discussed below, although (unlike its successor) it doesn't specifically mention trials.

The Chinese Government's refusal to allow Australian Government consular officials to observe the secret portion of the Rio Tinto trial was supposedly based on the alleged superiority of Chinese domestic law over China's international obligation under the Sino-Australian Consular Convention. On March 19 MOFA spokesperson Qin Gang said the case would be handled according to Chinese laws. In rejecting the Australian Government claim to have the right of consular attendance even at the closed portion of the trial, Qin said:"We should not confound the consular agreement with sovereignty, especially judicial sovereignty....The decision of a closed-door trial was made based on Chinese law..."

This was a dangerous assertion that China's formal international binding obligations cannot be relied upon if the Chinese Government later decides that the demands of sovereignty override them.

Yet it now appears that MOFA's position and the decision of the Shanghai Intermediate Court No. 1 to exclude the Australian consuls violated existing Chinese law, which since 1995 has explicitly instructed China's courts to permit foreign consular representation even at non-public trials.

Article 6 (1) of the Instruction on the Handling of Certain Problems in Foreign-Related Cases, issued jointly by MOFA itself together with the most authoritative criminal justice agencies in China (the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice) on June 20, 1995, instructs the courts to allow foreign consular attendance at non-public trials, including criminal trials, whenever there is a provision for this in consular agreements, as there is in the Sino-Australian agreement. Moreover, Article 1 (3) of the Instruction states that whenever there may be a conflict between China’s domestic law and its international obligations, its international obligations must prevail except where the Chinese government has made a reservation. It goes on to say “the authorities shall not refuse the obligations in international treaties by invoking domestic laws.” This Instruction remains in effect today.

It is difficult to understand how MOFA, the Shanghai Intermediate Court and Professor Wan Xia [万霞] of the International Law Department of China Foreign Affairs University could have been ignorant of this Instruction, which Chinese courts obeyed until recently. China's courts used to admit foreign consuls to closed trials in accordance with the Instruction. The Rio Tinto case is not the only recent case in which the courts and MOFA have violated the Instruction, which is an official interpretation of China's obligations under relevant consular conventions such as Australia's. Last summer the United States government's claim to send consuls to observe the trial of American citizen XUE Feng on charges of illegally obtaining state secrets relating to the oil industry, a trial that has not yet been concluded, was also rejected. Apparently neither the Australian Government nor the United States Government was aware of the Instruction, which makes clear that China's courts are to implement -- not contradict -- China's international obligations. So it turns out that it is MOFA and the Shanghai Intermediate Court that have violated China's exercise of its "judicial sovereignty," to the detriment of the Australian defendant, Sino-Australian relations and China's reputation for respecting international law.

Jerome Cohen and Yu-Jie Chen