Published: 29 December 2017 Author: Stefan Talmon
On 26 December 2017, Wu Gan, a Chinese blogger and human rights activist, was sentenced to eight years’ imprisonment for subversion of State power. In a separate case on the same day, human rights lawyer Xie Yang was found guilty of inciting subversion of State power but was exempted from punishment because he had previously pleaded guilty to the charges. The next day, the embassies of Germany and the United States of America in Beijing issued a joint statement on the sentencing of Wu Gan and Xie Yang which read as follows:
“The embassies of Germany and the United States are deeply disappointed that Chinese human rights defender and blogger Wu Gan and Chinese attorney Xie Yang have been convicted on vague charges of ‘subverting state power’, and that Wu has been sentenced to eight years in prison. We call on the Chinese authorities to release Wu immediately. As Xie has been exempted from punishment, we urge China to allow Xie to resume his professional activities without preconditions and be free of any restrictions.
For many years, Xie Yang has helped fellow Chinese citizens defend their rights under Chinese law. He was among those lawyers and other rights defenders, including Wu Gan, targeted by Chinese authorities in the so-called ‘709’ crackdown that began in July 2015. Wu was held in pretrial detention for more than two years and denied access to independent legal counsel until December 9, 2016. Xie was held incommunicado for six months before being charged, then was jailed for 18 months longer before appearing at an unannounced trial in May. During the trial, Xie read a scripted confession that directly contradicted his previous signed statement describing how he was treated while in detention. The court appointed an attorney to represent Xie and barred him from choosing his own counsel, after authorities detained his original attorney in May 2017.
In light of the allegations of serious mistreatment of Wu Gan and Xie Yang while in detention, and Xie’s public confession on state media, we call on the Chinese authorities to adhere to procedures established by law and respect China’s international human rights obligations and commitments. We urge Chinese authorities to view lawyers and rights defenders as partners in strengthening Chinese society through development of the rule of law.
We also continue to call for the immediate release of Wang Quanzhang, who has been held in detention and denied access to independent legal counsel for over two years.”
The Chinese Government was quick to denounce the joint statement as interference in its internal affairs. On 28 December 2017, the Chinese Foreign Ministry spokesperson said during the Ministry’s regular press conference:
“China is a country with rule of law [sic], and the Chinese judicial authorities handle cases in accordance with [the] law. The individual countries you mentioned, by making such irresponsible remarks on our judicial authorities’ normal handling of cases, blatantly interfered in China’s internal affairs and judicial sovereignty. Their actions per se have violated the spirit of [the] rule of law. China firmly opposes and will in no way accept that.
These two foreign embassies in China, as diplomatic missions, have no right to point fingers at China’s internal affairs and judicial sovereignty. We hope the relevant embassies could accurately position themselves as regards their functions and do more to promote mutual understanding, mutual trust and cooperation, instead of the opposite.”
The joint statement by Germany and the United States shows that the law on non-interference in the internal affairs of States is in a state of flux. Both the sending State and the individual diplomats are under an obligation not to interfere in the internal affairs of the receiving State B the former under a rule of general international law, the latter under Article 41, paragraph 1, of the Vienna Convention on Diplomatic Relations. In the past, public criticism of the judicial process in the receiving State combined with indirect allegations of violations of the receiving State’s international human rights obligations and commitments would have been considered without doubt illegal interferences in the internal affairs of the receiving State, especially if the judicial proceedings solely concerned its nationals. Germany and several other Western States no longer seem to accept this. However, this does not mean that the international law rules on non-interference have changed, as the reaction by the Chinese Government shows. On the contrary, receiving States have regularly denounced such public criticism as interference in their internal affairs. Even if human rights obligations are to be considered obligations erga omnes partes or even obligations erga omnes in which “all States can be held to have a legal interest in their protection”, this does not necessarily mean that sending States and their diplomats are entitled to publicly criticize judicial proceedings in the receiving State for alleged human rights violations. Human rights concerns may also be conveyed by diplomatic channels which, in many cases, may be more appropriate and effective.