The Rio Tinto Case Shows How China Steamrollers Its International Legal

SOUTH CHINA MORNING POST THURSDAY, APRIL 1, 2010 A13 The Rio Tinto case shows how China steamrollers its international Greg Barns legal commitments, write Jerome A. Cohen and Yu-Jie Chen Too quick to judge he Shanghai trial of Rio Tinto iron ore negotiator Stern Hu and his colleagues Liu Caikui, Ge Mingqiang and Wang Yong, on charges of bribery, has been given plenty of Law unto itself media attention in Australia in the past week. Coverage has been focused on the vagaries of the Chinese justice Tsystem, its secretiveness and the fact that it does not, in the eyes of many, measure up to Australian legal practice. But such a sense of triumphalism on the part of Australia should be tempered by the reality that elements of its much vaunted English common-law tradition are also less than transparent and fair to an accused person. lthough this week’s troubling accusations that China had Much of the criticism in Australian political and media circles Rio Tinto case focused violated international standards as well as has focused on the fact that parts of the Hu trial were held in secret, world attention on its own criminal law. and that Australia was denied consular access to Hu, an Australian China’s domestic When foreign governments and NGOs citizen, when the court was in closed session. Greg Sheridan, legal system, it also protested against the trial of famous writing in The Australian, went so far as to assert that “every raised doubts about a dissident Liu Xiaobo , who was serious observer knows that there is no integrity in the Chinese rising China’s sentenced to 11years for exercising his legal system”. adherence to its international and domestic rights to free There is no doubt that China’s legal system is open to international legal expression, the same spokeswoman – corruption and politicisation. But, for Australians to complain commitments. After again without substantive argument – about secrecy and closed courts in the Rio Tinto case is to the People’s Republic began to represent categorised such statements as “gross conveniently ignore the fact that, under post-September 11anti- AChina in the United Nations in October interference in China’s judicial internal terrorism laws, similarly draconian procedures are available to 1971, it steadily increased its participation affairs” that fails to “respect China’s prosecutors and courts in Australia. in the development of international law. judicial sovereignty”. In the past decade, these procedures have been invoked in a Despite continuing grave violations in It was the Rio Tinto case, number of terrorism cases in Australia. And what are they? By practice of existing international standards however, that fully revealed a invoking a claim of “national security”, government lawyers can for protecting civil and political rights, seeming arrogance towards produce secret material in affidavits that can be kept from defence China’s overall direction in international China’s international obligations. lawyers. Judges and magistrates are allowed to have access to this law, at least until recently, seemed When the Australian government secret material, however, and can make decisions based on it progressive. sought reconsideration of without having to give the person charged or being investigated a Now, however, an old, nationalistic Beijing’s refusal to permit chance to respond. The Australian government can also be tone has begun to mark its criminal Australian consuls to attend the represented in any terrorism trial and can prevent defence lawyers prosecutions of foreigners as well as closed session of Australian from asking questions without getting the written approval of the Chinese dissidents, often explained with national Stern Hu’s trial, as attorney general if the question is deemed to be entering into the merely vague references to “judicial required by the Sino-Australian territory of “national security”. sovereignty” without further elucidation. consular agreement, Courts can be closed to the public This may reflect the setbacks that China’s spokesman Qin Gang , The legal in terrorism cases, again where domestic criminal justice system has instead of attempting to defend government lawyers invoke national suffered since the 17th Communist Party Beijing’s decision through systems of security issues. And access to evidence treaty interpretation, dismissed democracies can be restricted to lawyers who agree the claim by stating that “the to undergo rigorous national security The claim that Chinese case would be handled such as checks. National security is so broadly according to Chinese laws”. defined – it simply means “Australia’s law precludes foreign China’s “sovereignty, Australia are defence, security, international consuls from attending especially judicial sovereignty”, relations or law enforcement interests” he said, takes precedence over no paragons of – that it allows plenty of scope for closed trials … flies in its binding international transparency government lawyers to turn Australian agreements. ...................................... court hearings into secret trials. the face of Chinese law This was a puzzling and Australia’s anti-terror laws also ............................................................... dangerous comment, since China’s allow for control orders, which curtail the movement of people, to international agreements are voluntary courtroom and where the bravest defence People’s Procuracy, jointly issued an be made against individuals even though they have not been Congress introduced tougher policies and exercises of China’s sovereignty and lawyers operate under severe restrictions instruction on the handling of foreign- charged with a crime. These orders can be made on an interim personnel in late 2007. This may also reflect commit it to conform its domestic laws to and pressures, is a nightmare. related cases, it has been clear that, if a basis without the person targeted by the order being present in a change of the Chinese government’s international standards, instead of using The presence of diplomats from one’s Chinese consular agreement provides for court or having any knowledge of the hearing. They are simply attitude towards international law in light domestic laws as excuses not to follow country provides not only an opportunity consular attendance at trials, that made on the evidence of police and security agencies. One of its growing influence on the world stage. them. to hold prosecutors, judges and defence commitment must be honoured even in a Australian judge has said of the national security laws “procedural It is a development worthy of attention. Last July, China also excluded American lawyers to account for their trial conduct closed trial and no domestic law can fairness is reduced, in practical terms, to nothingness”. This recent return to shrillness in consuls from observing the closed trial for but also at least a minimal, much-needed interfere with the international obligation. And even in commercial disputes, courts sometimes throw a Chinese rhetoric and practice of the alleged theft of state secrets of boost to an accused who has already been Indeed, the principle that, in Chinese suppression order over proceedings so they are secret. As the international law became apparent last American national Xue Feng, contrary to detained for months or even years before law relating to cases involving foreigners, Sydney Morning Herald reported recently, a Rio Tinto subsidiary December when the British government the provisions of the Sino-American trial, and who may understandably feel China’s international commitments trump was involved in one such case in 2002 where it prevented details of and human rights organisations lodged consular convention and despite the fact intimidated against speaking freely. its domestic law dates back at least to the its diamond mining business being reported by the media. many pleas and then protests against the that American consuls had been allowed to The most disturbing aspect of China’s 1987 predecessor to the still valid 1995 In short, the legal systems of such democratic countries as impending execution of an alleged heroin observe earlier closed prosecutions of defence of its Rio Tinto exclusion of instruction. This is a stark contrast with Australia, the United States, Britain and Canada – which have all smuggler, British national Akmal Shaikh. American nationals. The lack of publicity consular observers is that it rests on a false recent Chinese responses, which have invoked similar laws in the past 10 years – are no paragons of He was denied an adequate psychiatric then surrounding the Xue case – and the premise. The claim that Chinese law disregarded its own laws as well as transparency and fairness in dealing with sensitive matters. assessment to determine whether he failure of the US, which has had its own precludes foreign consuls from attending international norms. Solemn lectures from Australian commentators and politicians should be held responsible for the offence. lapses in consular obligations, to protest closed trials, contrary to the explicit ............................................................... about the foibles of China’s legal processes are immediately Apparently playing more to a domestic against that decision – enabled Beijing to provisions of many Chinese consular Professor Jerome A. Cohen is co-director undermined by virtue of the fact that secrecy is something that audience than a foreign one, Ministry of avoid a public explanation. agreements, actually

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