Germany’s ambassador to China: an undiplomatic diplomat?

Published: 28 December 2017 Author: Stefan Talmon

Increased Chinese espionage activities in Germany and curbs on the use of virtual private networks (VPNs) by German companies in China led to irritations in otherwise close and intense bilateral relations between China and Germany. On 10 December 2017, the Federal Office for the Protection of the Constitution (BfV) – Germany’s domestic intelligence agency – warned that China was trying to recruit German informants for intelligence services notably via the professional social media network LinkedIn. The head of the BfV commented that this was “a broad-based attempt [by Chinese intelligence] to infiltrate in particular parliaments, ministries and government agencies.” On the other hand, German companies with business activities in China were concerned that the new Cybersecurity Law, which entered into force on 1 June 2017, would limit the use of VPNs which allowed them to communicate securely with their office outside China and to access any of the approximately 3,000 websites and online services currently blocked in China by the “Great Firewall” system.

Asked about the BfV’s report on social media profiles which were allegedly faked by Chinese intelligence to gather personal information about German officials and politicians, the German Ambassador to China, Michael Clauss, said in an interview with the newspaper South China Morning Post, published in Hong Kong on 22 December 2017:

“As to the findings of the German Federal Office for the Protection of the Constitution (BfV), I would like to point out that in June 2016, Germany and China agreed to establish a consultation mechanism on cyber issues during the last Sino-German government consultations. Up to now this consultation mechanism, where these findings could have been discussed, has not yet seen the light of day. I expect the Chinese side to join us in setting up the agreed upon cyber consultation mechanism by early 2018.”

Responding to another question on whether small and medium-sized German companies operating in China had complained about difficulties with internet access given Beijing’s tightening control over VPNs, he said:

“Foreign companies were already worried by the new cybersecurity law, which entered into force on June 1 [2017]. Now the impending ban on unlicensed VPNs has further increased concerns. Secure and undisturbed end-to-end communication is essential for foreign companies and a prerequisite for advanced manufacturing. What especially gives rise to concerns are the uncertainties caused by the opacity of the procedures of regulation and standard setting, and the lack of communication with those concerned. Economists have already warned against the possible negative impact on the investment climate. Our repeated requests to have a meaningful dialogue on VPNs and cyber-related questions with the relevant Chinese authorities have regrettably not yet received a positive response.”

The consultation mechanism on cyber issues referred to by the German Ambassador was one of the projects that the Chinese and German governments had agreed to during the fourth intergovernmental consultations held in Beijing on 13 June 2016. The joint statement issued at the end of the consultations provided in the relevant part:

“Both sides are aware that cyberspace promotes social and economic development yet also poses risks and challenges in terms of data security, intellectual property and trade secrets.

In addressing these challenges, both sides want to deepen cooperation and, on the basis of their respective national law, identify fields in which they could work together to combat cybercrime. Furthermore, they want to prevent malicious cyber activity and foster a peaceful, safe, open and collaborative cyberspace.

Both sides agreed neither to engage in nor knowingly support the use of cyberspace to infringe upon intellectual property or trade secrets with a view to gaining a competitive advantage for their companies or commercial sectors. The two sides will protect the relevant rights and interests in line with their international obligations and national laws.

Both sides recognise the central role played by the United Nations in setting standards for cyberspace and will endeavour to work within the framework of the United Nations to advance internationally accepted standards for responsible state conduct in this field.

In order to implement the aforementioned agreements, intensify cooperation and resolve any problems that may arise as part of this cooperation, both sides will set up a consultation mechanism that the relevant bodies will be involved in.”

The envisaged “consultation mechanism” could have been an appropriate forum to discuss both issues of cyber espionage and unimpeded internet access via VPN.

On 27 December 2017, China hit back at the German Ambassador’s claims that it was avoiding talks on cybersecurity and VPNs. Asked to comment on the Ambassador’s remarks that the consultation mechanism on cyber security up to now had not yet seen the light of day due to a lack of sincerity to talk on China’s part, the spokesperson for the Chinese Ministry of Foreign Affairs stated:

“Ambassadors are supposed to respect the countries they are stationed in and act as bridges to promote understanding, friendship and cooperation between the two sides. Frankly speaking, this ambassador in question is not acting in that vein and his words and deeds are far from constructive and [are] in fact very wrong. Some of his arguments cannot be further from truth and even worse, they confuse right and wrong. I want to highlight that China has always been open to exchanges and cooperation with Germany on cyber security issues. The truth is that this June, in-depth exchanges and communication on these issues did take place during the first high-level security dialogue between China and Germany. The Chinese side has repeatedly invited the German side to visit China for consultations. Instead of sending any delegation, the German side accused China of [a] lack of sincerity for dialogue, which is absolutely unreasonable.

I believe that Mr. Clauss, as the Ambassador, must know all of these [sic] very well. We hope that the German Embassy and the relevant person avoid such these [sic] unprofessional and irresponsible remarks and do more to promote China-German relations and mutually beneficial cooperation.”

This statement was almost unprecedented. The Chinese Foreign Ministry, as a rule, does not openly criticize foreign diplomats. The spokesperson’s statement may have been a sign of increasing frustration with the German Ambassador who established himself as one of the most outspoken foreign diplomats in China, commenting regularly on sensitive issues ranging from human rights to the protection of intellectual property in China. This was not the first time that the Ambassador had voiced German concerns about the Chinese Government’s plan to ban the use of VPNs. In a statement on cyber regulation ahead of the 19th National Congress of the Communist Party of China, Ambassador Clauss said that our “repeated requests to discuss these topics [including unrestricted internet access via VPN] with relevant authorities have not led to meaningful dialogue so far. An open exchange is urgent, however, to look into pragmatic solutions, for example for foreign companies and organizations.” While openly criticizing the Government of the receiving State in the local media may not be particularly “diplomatic”, it is not contrary to international law. Both cyber espionage by Chinese intelligence agencies in Germany and the use of VPNs by German companies operating in China affect vital German interests. It is one of the core functions of a diplomatic mission to protect in the receiving State the interest of the sending State and its nationals, including its corporate nationals. At the same time, China is entitled to take issue with and be critical of any statement by the German Ambassador.

Category: Diplomatic and consular relations

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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