Did China trash a treaty?

by Frank Ching

The high profile case of Rio Tinto executive Stern Hu closed with the three-judge court sentencing the Australian citizen to 10 years in prison on charges of corruption and stealing commercial secrets.

Australian Foreign Minister Stephen Smith termed the sentence harsh and pointed out that part of the trial was held behind closed doors, with no Australian official present, despite a Sino-Australian consular agreement that provides for such presence. “Because we have had no access to that part of the trial, there are I think serious, unanswered questions which international business community will want to continue to pursue with China,” Smith said. The fact that the Chinese closed part of the trial despite the clear terms of a bilateral agreement is worrisome and casts doubt on the value of China’s signature on any treaty or international accord.

An agreement on consular relations, which came into force in 2000, provides: “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 charges against the national. A consular officer shall be permitted to attend the trial or other legal proceedings.”

However, the Chinese Foreign Ministry spokesman, Qin Gang, defended the barring of Australian consular officials by saying: “The China-Australia Consular Agreement should work on the premise of respect to China’s sovereignty and judicial sovereignty. China’s judicial authorities decide how to handle the case in light of Chinese laws and the nature of the case, and we should respect their decision.”

This is a stark reversal of China’s previous position on international agreements, which is that they are superior to domestic law.

In 1987, before the signing of the China-Australia consular agreement, the Chinese Foreign Ministry, the Supreme People’s Court, the Supreme People’s Procuratorate, the Public Security Ministry, the Ministry of State Security and the Ministry of Justice jointly issued a document declaring that “when domestic law or internal regulations conflict with our treaty obligations, we shall apply the relevant provisions of international treaties.”

Jerome A. Cohen, an American specialist in Chinese law, and an associate, Yu-jie Chen, have pointed to another document issued on June 20, 1995, that, like the 1987 document, was issued jointly in the names of the Foreign Ministry and the most authoritative criminal justice agencies in China, including the Supreme People’s Court and the Ministry of Justice.

While the 1987 document refers generally to the principle of international treaties overriding domestic law, the 1995 document, called Regulations on the Handling of Certain Problems in Foreign-Related Cases, directly addresses the issue of foreign consular attendance at trials that are closed to the public.

Article 1(c) of those regulations specifies that when there is a conflict between Chinese domestic laws and regulations and China’s treaty commitments, the treaty’s provisions should apply. Furthermore, Article 6(a) of the regulations provides that if China has signed agreements expressly permitting consular presence, then foreign consular attendance must be permitted even in closed trials.

In view of these Chinese regulations, it is difficult to understand how the Foreign Ministry spokesman, Qin Gang, could have said: “Please don’t confuse a country’s sovereignty, particularly its judicial sovereignty, with the Sino-Australian consular agreement. The Sino-Australian consular agreement also needs to respect China’s sovereignty and judicial sovereignty.”

This seems to reflect a lack of understanding of the nature of international agreements. When signing a treaty, a government, through an exercise of its sovereignty, agrees in effect to limit the exercise of its sovereignty in specific circumstances.

Cohen and Chen point out that the Stern Hu case is not the first time in which the Chinese Foreign Ministry and Chinese courts have not acted in accordance with the 1995 regulations. “Last summer,” they wrote, “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.”

For China to say that it can change the content of treaties after they have been signed and brought into effect sends the international community the troubling signal that China’s signature is worthless since it can decide to not honor a treaty at any time.

Surely China does not want the world to think that now that it has become strong and powerful, it no longer intends to abide by international norms, including the observance of treaty obligations.

Frank Ching is a journalist and commentator.