Who Violated International Law in the Chen Case: The U.S. or China?

The Chen Guangcheng saga is not yet completed, and indeed, as the NYT puts it, “what briefly looked like a deft diplomatic achievement for Secretary of State Hillary Rodham Clinton [has] turned into a potential debacle.”  I do hope Mr. Chen will find safety and justice soon, but I am not optimistic.

Until we discover his final fate, I thought I’d comment on one of the most curious parts of the Chen saga, especially to many average Chinese citizens.  Here we have the government of the United States bargaining round-the-clock with the Chinese government to guarantee the protection and rights of a Chinese national who lives in China and, who further, has no connection whatsoever to the United States.   In the eyes of many Chinese citizens, this is almost unbelievable (so unbelievable that some suspect a CIA conspiracy).  And for traditional international law, this is exactly the opposite of how things are supposed to work.  The human rights revolution has certainly had an impact in this respect, by focusing countries on the rights of non-citizens in their home countries.

But the human rights revolution has some serious institutional weaknesses.  One notices that Mr. Chen did not sneak into the U.N. mission in Beijing or call upon protection from a still abstract “international community.”  He went to the United States, which is considered one of the few powers  that would not be cowed by the Chinese government, and which is committed enough to human rights that it would not simply sell him out for their national interests (whether this is still true about the U.S. remains to be seen).

Here’s another strange thought: China is now accusing the U.S. of breaking international law. According to this account, State Department Legal Advisor Harold Koh personally approved the admission of Mr. Chen on “humanitarian grounds” and a U.S. embassy car actually was chased through Beijing by Chinese security before it made it to the safety of U.S. marine barracks at the U.S. Embassy.   China considers this a violation of international law (probably Article 41 of the Vienna Convention on Diplomatic Relations), and it is even demanding an apology from the United States.

It seems strange than to conclude that the U.S. may have violated international law, while China has not technically done so.  But this is a greater indictment of the existing international legal system, than of the U.S. actions here. International human rights law may have inspired Mr. Chen, but in the end, it took another nation, acting in technical violation of international law, to protect him.