The closing of the Stern Hu trial: a legal analysis

Recently there's been an e-mail circulating around describing how different countries label the various levels of terrorist threat. In Australia, the highest level is "the barbie is cancelled." The e-mail notes that this level has never been declared.

Alas, the Aussies seem to have gone soft in their ready acquiescence to China's closing of part of the Stern Hu trial, set to begin on Monday. Despite initial protests - more accurately, a polite request that the decision to close the trial be reconsidered - the Department of Foreign Affairs and Trade (DFAT) has announced that it's not going to complain any more. But in fact, I think Australia has a very strong case that the trial should be open to its diplomats.

Now, I understand that these things are complicated, and maybe there's something going on I don't know about that makes the picture look different. But on the surface, I have to say it looks very odd. (And don't even get me started about the oddness of Rio Tinto's CEO Tom Albanese addressing a conference in Beijing on the very day the trial starts. His session's topic? "Strengthening Global Cooperation for a Mutually Beneficial Future." Let's not forget on whose behalf Hu and his colleagues are alleged to have stolen commercial secrets. If the government believes its own allegations, why are Rio Tinto executives welcome in Beijing?)

Let me make clear that I have no inside knowledge about the merits of the case against Stern Hu. It remains to be seen what exactly the factual predicates of the alleged violations of law are, and how solid the evidence is of those facts. But I naturally tend to wonder when the accuser is so secretive.

Down to business. The Australian government has announced that "[a]t the request of one of the parties and in accordance with Chinese law and procedure, the Court has decided that the sessions dealing with the infringement of commercial secrets should be closed." For reasons that are not clear to me, they are being a little coy about which party. After all, there are only the defendants and the prosecution. In a subsequent communication, DFAT says it was "[a]t the request of one of the commercial parties on the Chinese side," but this is also puzzling. This is a criminal prosecution. How can there be commercial parties on the Chinese side? Perhaps there is some kind of parallel civil proceeding with an alleged theft victim as plaintiff, as allowed under Chinese law, but if so, it speaks volumes about the alarming opacity of this case that nobody has heard of it until now. (China also allows for a type of private prosecution of some cases, but not this kind.)

There are two issues here. (1) Does Chinese law allow or require part of the trial to be closed because it involves commercial secrets? (2) If it does, is closing the trial nevertheless a breach of China's undertakings in its agreement on consular access with Australia?

First issue: Chinese domestic law

On the first issue, I think the stronger argument is that Chinese law does not allow the trial to be closed on the grounds of commercial secrets. Several law-like documents are potentially applicable. The Criminal Procedure Law (the CPL), which in China's legal system has the highest authority of all of them (i.e., the other ones can perhaps "interpret" it but can't override it), deals with open trials in Article 152. That article says that trials shall be open except in a few limited circumstances. Those circumstances say nothing about commercial secrets.

第一百五十二条 人民法院审判第一审案件应当公开进行。但是有关国家秘密或者个人隐私的案件，不公开审理。十四岁以上不满十六岁未成年人犯罪的案件，一律不公开审理。十六岁以上不满十八岁未成年人犯罪的案件，一般也不公开审理。对于不公开审理的案件，应当当庭宣布不公开审理的理由。

Article 152

Cases of first instance in a People's Court shall be heard in public.  However, cases involving State secrets or private affairs of individuals shall not be heard in public.  

No cases involving crimes committed by minors who have reached the age of 14 but not the age of 16 shall be heard in public.  Generally, cases involving crimes committed by minors who have reached the age of 16 but not the age of 18 shall also not be heard in public.

The reason for not hearing a case in public shall be announced in court.

If the CPL were the only law on point, then the case would seem to be open and shut: Australian government representatives can't be excluded. Indeed, nobody can be excluded. But there are some other regulations on point as well (whether they override the CPL is another matter; I'll get to that later).

First, there is a 1998 "Interpretation" (a type of quasi-legislation) issued by the Supreme People's Court: the "Interpretation on Several Issues Relating to the Implementation of the 'Criminal Procedure Law of the People's Republic of China'" (关于执行《中华人民共和国刑事诉讼法》若干问题的解释). Article 121 of the Interpretation repeats the rule of the Criminal Procedure Law, and adds, "In cases genuinely involving commercial secrets where a party so requests, the court should decide to hold a non-public trial" (对于当事人提出申请的确属涉及商业秘密的案件，法庭应当决定不公开审理). This adds a basis for closing the trial that was not present in the Criminal Procedure Law. It also does not specifically state that the party requesting the closure of proceedings must be the party who will be hurt by the release of the secrets, even though one would think that is probably what is meant (more on that later).

Second, there is a 2007 Supreme People's Court document entitled "Several Opinions on Strengthening the Work of People's Courts in Holding Public Trials" (关于加强人民法院审判公开工作的若干意见). (This should not be confused with a judicial opinion; it's legislation, not case law.) Article 3 of the Opinions states, "Statutory rules on the scope of public trials shall be rigorously implemented; in the course of adjudication work, state secrets and secrets of judicial work shall be strictly kept, and the parties' private affairs and commercial secrets shall be protected according to law." (要严格执行法律规定的公开范围，在审判工作中严守国家秘密和审判工作秘密，依法保护当事人隐私和商业秘密) Article 11 states, "When a party raises the issue that the case concerns personal private affairs or commercial secrets, the people's court should synthesize factors such as the views of the parties and normal rational cognition of society, seek the views of experts where necessary, and decide [whether or not to close the trial] on the basis of a rational judgment" (当事人提出案件涉及个人隐私或者商业秘密的，人民法院应当综合当事人意见、社会一般理性认识等因素，必要时征询专家意见，在合理判断基础上作出决定).

The Interpretation and the Opinion raise two main issues. First, does the party who objects on the grounds of commercial secrets have to be the party who will be hurt by their public airing? I think the more plausible view is Yes. If there is a public policy good that is served by having open trials, what supervening value is served by allowing a party to close it on the grounds that someone else's commercial secrets will be revealed? Note that it can't be a general desire to preserve commercial secrets, because in that case there would be no reason to limit objectors to parties to the case; the person being damaged should be allowed to request that the trial be closed. But the right to object is limited to parties.

If this interpretation is correct, then the procuracy (the government prosecutors) have no standing to ask that the trial be closed on the grounds that commercial secrets (presumably those involving Chinese ore purchasers) are involved. As noted above, DFAT is now saying that it was a "Chinese commercial party," but it remains to be explained how there can be a Chinese commercial party in a criminal case. [4/20 UPDATE: I now have the explanation; I overlooked Art. 82(2) of the Criminal Procedure Law, which defines "party" to include victims (alleged victims, really) of a crime. Thus, the Chinese steel producers could have been parties within the meaning of Chinese law. My mistake.]

The second main issue is whether, assuming that these rules do give the prosecution - or somebody - the right to close the trial on the grounds of commercial secrets, the rules are valid and superior to the rule of the CPL, even though they seem to contradict that rule. Chinese law is very clear that laws like the CPL, passed by the National People's Congress, are higher than anything promulgated by the Supreme People's Court (SPC), and that the SPC has the power only to interpret ambiguities, to fill in the gaps, etc. In fact, the SPC engages in extensive legislative activity that often seems to go way beyond its lawful authority, and the system more or less accepts that reality. But is the Chinese government prepared to say that the SPC can, in practice, override what the NPC says?

Perhaps one could say that the SPC hasn't exactly overridden the rule of the CPL, since the CPL never said anything about commercial secrets one way or the other. It didn't say commercial secrets could not be grounds for closing a trial, and so the SPC is just adding a condition, not contradicting the CPL. This argument strikes me as silly. Chinese law is quite capable of saying "etc." and "and in other similar cases where it is deemed necessary." But it doesn't say so in Art. 152 of the CPL. It says all trials shall be open with the exception of trials in circumstances X, Y, and Z. If the failure to specify that commercial secrets can't be added to the list means that the SPC can add them, then what about the failure to say anything about trials on Tuesdays, or trials of people surnamed Zhang or who have beards?

For these reasons, I conclude that (a) the rules issued by the SPC do not in fact provide grounds for the procuracy to ask that the trial be closed, and (b) even if they do, those rules cannot override the CPL rule to the contrary.

Second issue: China's treaty obligations

But suppose you don't buy any of the above and believe that Chinese domestic law justifies closing the trial on the grounds of commercial secrets. That doesn't end the discussion. We still have to ask whether China as a state has a treaty obligation to allow Australian consular representatives to attend the trial.

Here the answer seems to be pretty clearly Yes. The argument in summary is this: (a) the Chinese-Australian agreement on consular access very clearly gives Australia the right to send consular representatives to attend trials of its nationals in all cases, with no exceptions listed; (b) there is evidence that this provision was important and was specifically negotiated; and (c) the arguments that other provisions take away this right are not strong.

Article 11(1)(f) of the Agreement on Consular Relations Between the People’s Republic of China and Australia [Chinese text] states:

[I]n the case of a trial or other legal proceeding against a national of the sending State in the receiving State, the appropriate authorities shall make available to the consular post information on the charges against that national. A consular officer shall be permitted to attend the trial or other legal proceedings (遇有派遣国国民在接受国受审判或其他法律诉讼，有关当局将向领馆提供对该国民提出指控的情况，并应允许领事官员旁听审判或其他法律诉讼)

Seems pretty clear, right? No exceptions contemplated. But what about Article 11(2)? That says:

The rights and obligations referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, provided however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. (本条第一款所规定的权利和义务的实施应遵守接受国的法律规章，但此项法律规章务须使本条所规定的权利的目的得以充分实现。)

So first of all we have what might appear to be an exception: the rights must be exercised in conformity with Chinese laws and regulations. But is it plausible to suppose that the parties intended that phrase to mean that the laws and regulations of the receiving state could utterly nullify the rights just granted? Even without the "provided, however", that interpretation is implausible. And it becomes impossible to maintain once we take into account the "provided, however" phrase, which makes it clear that a state cannot use its domestic law as an excuse to override the rights granted in Art. 11(1).

That the parties meant what they said becomes even more likely when we look at the Vienna Convention on Consular Relations, to which China and Australia are both parties and from which they borrowed a lot of the relevant language. The parallel provision in the Vienna Convention is Article 36. Para. 2 of Art. 36 tracks Art. 11(2) of the Australia-China consular agreement virtually word for word - far too closely for it to be an accident. But Para. 1 is different - the consular agreement adds in things not present in the Vienna Convention. Here's Art. 36(1) of the Vienna Convention:

With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State, shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

And here's Art. 11(1) of the bilateral consular agreement, with new matter highlighted:

With a view to facilitating the exercise of consular functions relating to nationals of the sending State: 

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; 

(b) consular officers shall be entitled to ascertain conditions in life and work of a national of the sending State in the receiving State and provide him or her with necessary assistance at all times; 

(c) consular officers shall be entitled to request the competent authorities of the receiving State to ascertain the whereabouts of a national of the sending State, and the competent authorities of the receiving State shall do everything reasonable in the circumstances to provide the relevant information; 

(d) consular officers shall be entitled to receive and take into temporary custody money or valuables of a national of the sending State in accordance with the laws and regulations of the receiving State; 

(e) the competent authorities of the receiving State shall within three days inform the consular post of the sending State if, within its consular district, a national of the sending State is arrested or committed to prison or to custody pending trial or is detained in any other manner, unless that person expressly requests that the consular post of the sending State should not be informed. The authorities of the receiving State shall inform the consular post of the reasons for which a national has been arrested or committed to prison or to custody pending trial or detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the detained person concerned without delay of his or her rights under this sub-paragraph; 

( f ) in the case of a trial or other legal proceeding against a national of the sending State in the receiving State, the appropriate authorities shall make available to the consular post information on the charges against that national. A consular officer shall be permitted to attend the trial or other legal proceedings; 

(g) in the case of a trial or other legal proceedings against a national of the sending State, the appropriate authorities of the receiving State shall make available adequate interpretation to that national when necessary; and 

(h) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him or her, and to arrange for his or her legal representation. They shall also have the right to visit, to converse and correspond with any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Access to detained nationals of the sending State shall be guaranteed by the competent authorities of the receiving State to a consular officer of the sending State within two days of initial notification of arrest or detention as specified in paragraph 1(e) of this Article, and at least once a month thereafter. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he or she expressly opposes such action.

In other words, the language about access to trials isn't just meaningless boilerplate. One or both of the governments involved felt that the Vienna Convention was inadequate in a number of ways, wanted these provisions put in, and got what they wanted.

Thus, I conclude that China has a treaty obligation to Australia to allow access to the trial, whether or not it has an obligation to open the trial to anyone else.

The Chinese government's answer

Finally, it's worth looking at what the Chinese government has to say about this. Regrettably, it has offered no serious, reasoned defense. On March 18th, Ministry of Foreign Affairs spokesman Qin Gang addressed some of these questions in a way that should forever put to rest accusations that Chinese government bureaucrats don't have a sense of humor. When asked about the closing of the trial, he insisted it was being handled in accordance with the Australian-Chinese agreement on consular relations and added this bizarre observation: "China has from ancient times stressed silence in the courtroom because the courtroom is a dignified place; one can't make a lot of noise before the trial has begun, one can't interfere with the independent handling of the case by China's relevant departments" (中国自古讲究开庭肃静，因为法庭是一个庄严的地方，不能在还没开庭的时候就冒出各种杂音，不能干扰中国有关部门依法独立办案). What this has to do with excluding Australian diplomats from the trial is not clear. Perhaps it is the Aussies' reputation for loving a good party. Are they afraid the diplomats will try to interrupt the trial with a barbecue?

When asked again about the matter, he responded, "Please don't mix up the relationship between a country's sovereignty, particularly its judicial sovereignty, and the Chinese-Australian Agreement on Consular Relations. The Chinese-Australian Agreement on Consular Relations must be premised on respect for China's sovereignty and judicial sovereignty" (请你不要混淆一个国家的主权，特别是司法主权和《中澳领事协定》的关系。《中澳领事协定》应以尊重中国的主权和司法主权为前提). Um... I hate to be the one to break the bad news, but the right to do exactly as you please is precisely what you give up when you enter into an international treaty. It is your sovereignty that makes your promise meaningful. Does the Ministry of Foreign Affairs really back Mr. Qin's interpretation of what it means to sign a treaty - that any obligation can be waved off by saying the magic word "sovereignty"? Does China expect those with whom it signs treaties to treat their obligations similarly? This would certainly be a new direction in Chinese foreign policy.