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

by Julian Ku

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.


4 Responses

  1. I can see the Chinese arguing Article 41 but I am not sure that this ends up being such a violation.  Chen must have made some request to the US mission for Koh to have approved the admission of Mr. Chen on “humanitarian grounds.”  And evaluating such requests forms part of what an Embassy does.   It is well known that Chen is a dissident and has been subject to human rights tribulations at the hands of his own government.

    An analogy might be the case of the Chief Justice of the Supreme Court of Uganda under Idi Amin.  The late Harvard Law Professor C.Clyde Ferguson, Jr. (then the US Ambassador to Uganda), having been made aware of Idi Amin’s threats to kill the Chief Justice whisked the Chief Justice into the trunk of a US embassy car and had him spirited to the border in the diplomatic vehicle.  When the Ugandan border guards wanted to search the car, Ferguson asserted the diplomatic nature of the car to block the guards from opening the trunk.  If Chen, through his lawyer, had communicated to the US ambassador the desire for US protection, Koh may have sent the US car in a way that he could be picked up and then that would cause the Chinese security to hesitate to stop, open and search the car.

    Another example, maybe not as spectacular but still there, was my father’s efforts as a USAID person on post during the time of Wole Soyinka being held by the military government during the Biafran War in Nigeria in the late 60’s.  Here the effort was to keep Soyinka’s name out in the news so as to have the military government hesitate to liquidate Soyinka – who later won the Nobel Prize for Literature.  Did not work for Ken Saro Wiwa alas at the time of Abacha – hey Shell remember Abacha?  Ring a Kiobel?

    Another example, was with the Sergeant Doe coup in Liberia, my father moved heaven and earth to have former President Carter get to the US Ambassador to enquire about the whereabouts of Romeo Horton – my late godfather and one of the founders of the Organization of African Unity back in the day – who was the head of the Bank of Liberia and had been “disappeared.”  The US Ambassadoe enquired about this Liberian citizen and the result was that Romeo was pulled out of a dark prison and was ultimately allowed to leave Liberia and come to live in the States.

    Another example, cutting the other way, was when Richard Wright was being blocked from LEAVING the US back in the 40’s by the State Department not being willing to issue him a passport.  Claude Levi Strauss was the Cultural Officer for the French Embassy and formerly issued Wright an invitation by the government of France which had the effect of unblocking the US process which was about harassing Wright (and other blacks trying to travel abroad for that matter).

    I do think that the Chinese may have made it clear to the US that “you want us to hold your bonds, then you better get this guy back to us” in their inimitable hardball style and – consistent with the putting on the back burner of human rights in our relationship with China – Chen got played by the diplomats to get him out of the Embassy before Hillary arrived.  I could imagine Hillary letting it be known that this had to be “fixed” before she landed.  Chen’s conversation with her appears to be pretty thin human rights supportive gruel – really just an afterthought that is less about protecting Chen and more about protecting Hillary’s human rights bona fides and – by extension – Obama’s.

    I suspect Harold and the Ambassador were moving heaven and earth to try to get this guy to safety but got overruled by the business side.  That they would do that for torture accountability would be nice. 

    In the print version of the Toledo Blade today, there is a picture of Harold on the front with Chen and Ambassador Locke going into Chaoyang Hospital but Harold is not identified (described as another official).  I think that might be humbling for all us international law types – without a name in the picture.  I am calling the Blade to see if it can be corrected though the photo is not on the online version.


  2. Also, let me go on record saying that the quiet diplomacy view of human rights is just a smokescreen for not doing anything and having business and financial interests predominate.  Quiet diplomacy is used to render people to countries that torture them for us – that is the “human rights” talk that really goes on.

  3. I’m going to have to concur with Mr. Davis, this whole incident is not looking too terribly good for the US.  Perhaps I’m a little cynical, but I’m surprised the US cooperated in giving him shelter in the first place.  I figured they’d just turn him over to the Chinese government.

  4. Romney jumps in http://thecaucus.blogs.nytimes.com/2012/05/03/romney-assails-obama-on-handling-of-chen/

    I think the Chinese are playing us in leaving the opening for Chen to leave his house helping to create a kerfuffle in the course of this week when they figure Obama would do a OBL victory lap.  Then figuring Romney would find it too irresistible and Romney would jump in.  Then like water torture, this gets strung out by the Chinese to weaken Obama and America in the battle with Romney in the presidential election.  Knowing all the actors very well and having studied them, I would not put it past the leaders of the Chinese to have orchestrated and, if they did not, known quickly the way to play this to China’s advantage and American disadvantage.

    But, it could also be Obama and Hillary playing this themselves to permit a soon to come “tough on China” moment in the presidential election.  Or maybe it is Hillary being played so Obama can come in and save the day.  Maybe this draws Romney into criticizing Obama like he has done to set up later in the campaign a “At the water’s edge, in the old days America spoke with one voice, Romney did not learn that lesson and does not understand that and is not fit to be President” kind of meme.

    And all these folks keep coming here to Ohio!

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