Chinese
Human Rights Activist May Have Fled to U.S. Embassy, But He Won’t Get Asylum
by
Julian Ku Apr. 27, 2012
China’s
famous human rights activist Chen Guangcheng (who even Christian Bale was beat
up when he tried to visit) has somehow managed to escape from his two-year
house arrest* and may have made his way to the
U.S. Embassy in Beijing. Chen has released a powerful web video
detailing the physical abuse he and his family have suffered during his house
arrest and demanding that the Chinese government act.
(the U.S. not adopt diplomatic asylum, nor bound by the
Refugee Convention)
If
Chen truly has made it to the U.S. Embassy, he is hardly home free. If,
for instance, he seeks political asylum, he is out of luck. I will let
either Duncan or Peggy correct me on this if I am wrong, but I believe as a
matter of policy, the U.S.
does not consider asylum requests at their consulates and embassies. As
a matter of law, the U.S.
does not view itself bound by the Refugee Convention to do so. Of
course, Chen may seek “sanctuary” but the U.S. has no obligation to give him
such sanctuary and will only do so in exceptional or extraordinary
circumstances. Nor does China have any obligation to allow the U.S. to
spirit him out of the country. (I’ve been the U.S. Embassy in Beijing
several times and I am a little surprised that Chen could have gotten past the
Chinese guards who surround the place without the assistance of U.S. embassy
personnel).
I
should add that Chen’s public statements suggest he is NOT seeking asylum and
he does not want to leave China (his family is still in house arrest).
But with Secretary Clinton headed to Beijing for a few days, this will no
doubt become an issue in the already uncomfortable U.S.-China Strategic
Economic Dialogue. And perhaps she can chat with Mr. Chen when she gets a snack
at the Embassy kitchen. Mr. Chen may be a houseguest for a while.
Who
Violated International Law in the Chen Case: The U.S. or China?
by
Julian Ku May 3, 2012
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.
Article
41
1.. Without prejudice to their privileges and
immunities, it is the duty of all persons enjoying such privileges and
immunities to respect the laws and regulations of the receiving State. They
also have a duty not to interfere in the internal affairs of that State.
2.. All official business with the receiving
State entrusted to the mission by the sending State shall be conducted with or
through the Ministry for Foreign Affairs of the receiving State or such other ministry
as may be agreed.
3.. The premises of the mission must not be used
in any manner incompatible with the functions of the mission as laid down in
the present Convention or by other rules of general international law or by any
special agreements in force between the sending and the receiving State.
Activist
Challenges U.S. Deal
May
3, 2012 By KEITH JOHNSON and JOSH CHIN
in Beijing and JAY SOLOMON in Washington
But
Chinese officials demanded a U.S. apology over allowing a Chinese citizen into
the embassy "via abnormal means." Washington defended its actions as
"lawful."
In
demanding a U.S. apology for the harboring of Mr. Chen, Foreign Ministry
spokesman Liu Weimin said the U.S. "should learn from the incident in a
serious and responsible attitude and reflect on its own policy and moves,"
according to the state-run Xinhua news service.
Officials
said that Mr. Chen entered the U.S. Embassy on April 26, several days after his
escape, with the help of embassy personnel and that the U.S. helped Mr. Chen on
humanitarian grounds because of his foot injury, adding that he scaled no fewer
than eight walls during his flight.
A
Car Chase, Secret Talks and Second Thoughts
By
JANE PERLEZ and ANDREW JACOBS May 2,
2012
BEIJING
— Injuries suffered in the course of a daring nighttime escape. A covert appeal
from underground activists to top State Department officials for humanitarian
protection. A car chase through the streets of Beijing to spirit a dissident to
safety inside the fortified American Embassy.
With
Mr. Chen in her car, a decision had to be made: try to surreptitiously leave
the country through the help of Christian activists, or stay in an attempt to
establish an independent life within China. “Chen made it clear that he had no
interest in becoming an exile,” said Bob Fu, an exiled Chinese dissident whose
organization, ChinaAid, has helped others make the overland escape.
Ms.
He followed Mr. Chen’s wishes and drove him more than 300 miles to the capital.
“By the time I saw him he was in so much pain from his injury he couldn’t even
stand,” said Hu Jia, a dissident in Beijing
It
was decided that only the American Embassy could provide that kind of
protection. Another friend first contacted the embassy, explaining that Mr.
Chen had a serious foot injury and needed help, according to an American
official involved in the discussions.
The
matter was quickly brought to the attention of Harold Koh, the State Department
legal adviser who was in China on another matter. After consulting with senior
State Department officials, Mr. Koh determined that Mr. Chen’s injury
and blindness qualified him for short-term humanitarian assistance in a “good
Samaritan way,” one of the officials said.
A
rendezvous point was agreed upon in an area some miles west of the embassy
where an official car would meet the vehicle carrying Mr. Chen. The plan was
for the lawyer to be helped into the embassy car.
But
as the two vehicles were about to converge, the Americans noticed Chinese
security cars tailing them, one behind the embassy car, the other behind the
car with Mr. Chen and his friend, an American official who was briefed on the
events said.
As
Mr. Chen’s car moved into an alley, the embassy vehicle drew alongside, and the
lawyer was pulled into the American vehicle. The Americans evaded the two
Chinese cars and headed for the embassy, the official said.
Once
he was safely inside a United States Marine dormitory, American diplomats imposed
an information blackout — even refusing to confirm whether Mr. Chen was in
their hands — as they negotiated his fate with senior Foreign Ministry officials.
Inside
the embassy, the Americans asked Mr. Chen about his desires; he made it clear
he did not want to make a request for asylum. Instead, during his talks with
Mr. Koh, the State Department legal adviser, and Kurt Campbell, assistant
secretary for East Asian and Pacific Affairs, he spoke fervently of his desire
to stay in China, to be reunited with his wife and two children, and to start a
new life away from Shandong.
The
American ambassador, Gary Locke, who rushed back from a vacation in Bali to
participate in the negotiations, also spent several hours each day talking to
Mr. Chen during his time at the embassy.
In
the early sessions with the Chinese diplomats, the Americans suggested that Mr.
Chen be allowed to move to Shanghai, where New York University is planning to
open a law school. That idea was rejected by the Chinese, they said.
A
written document with details of assurances by both sides was not feasible on
the grounds that it would take too long to finalize, officials said.
