Written by: Donald R. Rothwell, Professor, ANU College of Law, Australian National University
The arrest of Chinese-Australian writer Yang Hengjun on suspicion of espionage in China has significant consequences for both Yang and Australia.
This is especially the case if China asserts Yang was spying for Australia. Espionage is a capital crime in China, and if convicted of such a charge, Yang would face the death penalty.
Australia remains resolutely opposed to the death penalty and has previously devoted considerable diplomatic and political efforts to protect Australians facing execution. In combination, these factors have the potential to affect Australian-Chinese relations for years to come.
Yang arrived in China in January direct from the US, but was quickly detained and has been held for questioning ever since. Australian consular access has been granted, most recently on Tuesday. However, Foreign Minister Marise Payne has expressed concerns over his welfare and the conditions of his detention.
Payne has also made clear that Yang was not spying on behalf of Australia, and has called for him to be treated in accordance with international human rights law.
Has Australian pressure worked in the past?
The next steps will be for Yang to be formally charged, after which he will be subject to trial. Given the length of his detention so far and that he has now been formally arrested, Chinese prosecutors should be able to confirm the criminal charges against Yang without delay.
Consistent with Chinese criminal practice, his trial could be expected to take place relatively soon. And his legal prospects appear grim. Chinese courts have historically had conviction rates more than 99% in criminal cases.
The Yang case has some parallels with that of the Rio Tinto executive Stern Hu, a Chinese-born Australian citizen, who was arrested in Shanghai in July 2009 on bribery and acquisition of commercial secrets charges.
After his arrest, Australia sought to assert its rights under the terms of the 1999 Consular Relations Agreement between Australia and China, a treaty that supplements the Vienna Convention on Consular Relations and provides clarity regarding the provision of consular access to detained nationals.
China did grant Australia consular access to Hu in prison, but Australian officials were prevented from attending part of his trial, which was closed.
That case created a headache for the Rudd government. Then-Foreign Minister Stephen Smith was actively engaged in seeking to ensure that Hu’s rights as an Australian citizen were upheld, but had little success.
Yang’s rights under treaties and international law
What, then, is the international legal framework for Australia to make representations on Yang’s behalf?
As Yang is a citizen, Australia is entitled to receive notifications from China within three days of arrest, custody pending trial or any form of detention. These requirements of the Consular Relations Agreement appear to have been met so far.
Likewise, Article 11 of the agreement provides for monthly consular access, which would allow Australian officials to communicate with Yang and arrange for his legal representation.
Again, it would appear that this has been complied with. Though Yang has been detained in secret for seven months without access to his family, he has been visited by consular staff seven times. Yang has also been able to retain lawyers in China and also in Australia, but his lawyers have yet been able to actually communicate with him.
Importantly, the Consular Relations Agreement makes clear in Article 5 that consular functions include
protecting and securing the rights and interests … of its nationals within the limits permitted by international law.
It is therefore significant that Payne has in recent days directly referred to Australia’s expectations that Yang’s ongoing detention be conducted in accordance with international law.
In this respect, the 1948 Universal Declaration of Human Rights recognises a series of basic standards that apply to detained persons under arrest, including that they not be subject to torture, or cruel, inhuman or degrading treatment. The declaration also recognises that the accused has the right to a fair and public hearing once a matter goes to trial and the right to legal representation.
While China is subject to the Universal Declaration of Human Rights, as part of customary international law, it has not accepted many of the core UN human rights treaties, including the 1966 International Covenant on Civil and Political Rights. This treaty provides fundamental guarantees for a fair trial and limits the application of the death penalty.
Nevertheless, both Australia and China are parties to the 1984 Convention Against Torture. As such, there is a clear legal basis for Australia to express its concerns over the conditions in which Yang has been held to date, which reportedly have included constant exposure to bright light.
Why China is unlikely to back down
The Chinese Foreign Ministry responded to Payne’s comments by stating
Australia should respect China’s judicial sovereignty and not interfere in any way in China’s lawful handling of the case.
This statement gives a hint to one of the fundamental legal difficulties Australia will confront in Yang’s case.
Yang was born in China and at one time served as a Chinese diplomat. China has strict laws that make it very difficult to renounce Chinese citizenship. Even if a citizen acquires another nationality, as Yang has with Australia, China will often not accord full entitlements to the other state of nationality.
Because Yang has been accused of spying, which under the laws of any country goes to the heart of state security and sovereignty, this will only further harden China’s position. This explains why Australia has used such forceful language regarding the Yang case and has quickly moved from quiet diplomacy between foreign ministers to public statements.
Australia appears ready for a tough diplomatic battle with China over this matter. But with the bilateral relationship at such a delicate point, there will be a desire in Canberra to place a silo around this exceptionally challenging consular case so that it does not impact Australia’s economic ties with China.
However, given the espionage allegations and potential for the death penalty to be applied, this will prove to be particularly difficult.
Donald R. Rothwell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.