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Wednesday, Oct. 5, 2011

China's selective respect for treaties


HONG KONG — Beijing continues to declare that its rise will be peaceful, but other countries are watching its actions to judge whether it will behave like a responsible power.

A key criterion is the extent to which China is willing to be bound by rules and regulations, such as United Nations treaties that it has signed or ratified.

Recent attention has focused on the United Nations Convention on the Law of the Sea, which China ratified in 1996. Despite its ratification, China is asserting territorial claims that are not supported by the convention, including claims on all the Spratly Islands.

China's attitude toward international law is reflected in other areas. In 1998 Beijing signed the international covenant on civil and political rights, which guarantees such basic rights and freedoms of individuals. It has not ratified the covenant.

Now, China is considering changes to its criminal procedure law, including a proposed amendment that would have the effect of legalizing the currently illegal practice of "disappearing" people in certain cases by confining suspects in places other than their own homes without informing their family members.

Such a move would be retrograde and certainly inconsistent with the human rights covenant. It would also appear to be inconsistent with China's status as a signatory. This is because signatories of covenants — even ones that have not yet been ratified — also have obligations.

Article 18 of the Vienna Convention on the Law of Treaties says "a state is obliged to refrain from acts which would defeat the object and purpose of a treaty" after it has signed the treaty, even before its ratification, "until it shall have made its intention clear not to become a party to the treaty."

Since China insists that it intends to eventually become a party to the treaty, it has an obligation to refrain, in good faith, from enacting new laws that are in violation of its provisions.

This proposed amendment is certainly inconsistent with the covenant and, hopefully, it will not be enacted. But the fact that the government has proposed it suggests that it feels that its signature of the International Covenant on Civil and Political Rights does not impose any obligations on its behavior.

Another example of Beijing's attitude toward international treaties is its recent instruction to the Hong Kong judiciary regarding how to rule in a case.

An American company, FG Hemisphere Associates, sought to recover slightly over $100 million owed to it by the Congo government through the Hong Kong courts.

However, the Chinese government told the Hong Kong judiciary that China recognized absolute immunity for sovereign states even when a government acts in a commercial capacity and that Hong Kong courts must do the same thing.

This position was odd since China in 2005 had signed the United Nations Convention on Jurisdictional Immunities of States and their Property, which acknowledges the restrictive doctrine of immunity, under which governments acting in a commercial capacity would not have immunity.

The Chinese Foreign Ministry's commission, in a letter to the Hong Kong Court of Appeal, confirmed that Beijing had signed the convention. The reason, it said, was to express its support of the "coordination efforts made by the international community."

But, it pointed out, China has not ratified the convention, and the convention itself has not yet entered into force. "Therefore the convention has no binding force on China, and moreover it cannot be the basis of assessing China's principled position on relevant issues."

"After signature of the convention," it said, "the position of China in maintaining absolute immunity has not been changed."

This is baffling. China signed a treaty not because it supports its provisions but to encourage cooperation within the international community. In fact, it seems, China's "principled position" is actually opposed to the purpose of the treaty.

This seems to contradict Article 18 of the Vienna convention, which says that a signatory state has an obligation "not to defeat the object and purpose of a treaty prior to its entry into force."

By instructing the Hong Kong courts to uphold absolute immunity, it would appear that China's action was not consistent with the treaty's object and purpose.

Of course, signature and ratification impose different obligations on a state. And a treaty that is not yet in effect is not the same as one that is in effect.

Nonetheless, China's words and actions where treaties are concerned will be weighed by the international community in deciding whether China is likely to behave responsibly and whether other countries should welcome or fear its growing global influence.

Frank Ching is a journalist and commentator based in Hong Kong. Frank.ching@gmail.com Twitter: @FrankChing1


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