US-China Relations and the Execution of Humberto Leal

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This topic is a bit deep and technical for the weekend. Sorry about that. It is, however, of some importance, particularly when you think about some recent high profile criminal cases in China involving foreigners.

The big one that comes to my mind is that of Xue Feng, an American geologist jailed for eight years after he was convicted on state secrets violations. I wrote about the case last year. One of the important legal, and diplomatic, issues of the Xue Feng case was whether China was fulfilling its obligations under both international and Chinese law. Several prominent foreign lawyers, including Jerome Cohen, argued, quite persuasively in my mind, that the trial was significantly flawed. Violations included, among other things, provisions of the US-China Consular Agreement.

Which brings us back to . . . Texas. Yes, that’s right. The actions of governor Rick Perry and the state of Texas is forcing me to write this, another one of those “Hypocrisy!” posts.

As usual, please note that I am not comparing China to Texas (that would be fun, though) and am not arguing for moral equivalency with respect to anything. My narrow point is that the US moral position on many bilateral issues would be better served by “practicing what it preaches” as often as possible.

What did Texas do this week? It executed a Mexican national, Humberto Leal, Jr. This happened after both George Bush (when he was president), Barack Obama, the US Justice Department et al challenged the actions of Texas.

What was the problem?

The International Court of Justice ruled in 2004 that the United States violated the rights of Leal and more than three dozen other Mexican nationals on death row because law enforcement officials didn’t advise them of their right to have consular access to officials from their home country under international law.

Yeah, that issue of consular access again, one of the problems with that Xue Feng case.

Why is this Texas execution even remotely relevant to US-China relations? Because the Chinese government pays attention to this sort of thing and is quite willing to throw it back at the US government when China’s own policies are criticized.

Whenever the US government lectures China about treatment of minorities (particularly out West), what do we hear from Beijing? US race relations, poverty rates in the African-American and Latino populations, etc.

When we hear US complaints about the Great Firewall and Internet censorship in China, what do we hear from Beijing? US domestic surveillance activities, including illegal wiretaps.

You see the pattern. And the possible effects of the Humberto Leal execution are obvious to anyone, except I suppose for Governor Rick Perry. John Bellinger, lawyer at Arnold & Porter and former State Department lawyer, said it best:

It should be obvious to anyone, including officials in Texas, that if Americans, including Texans, are arrested and detained in some other country and the United States complains that they have not been given their consular notice it will be pointed out to us that the United States doesn’t comply with our own international obligations.

It cuts the legs out from under the State Department — maybe not immediately but over the longer run — to make arguments on behalf of Americans who are detained abroad.

6 responses on “US-China Relations and the Execution of Humberto Leal

  1. D

    I am an American living in China, and I like some of Gov. Rick Perry’s ideas on some issues. However, this decision to not adhere to international law was selfish, provincial (fittingly), and will hurt Americans abroad. There has been talk of Gov Perry possibly becoming President, but this decision was a direct assault on the health and well-being of Americans living outside of the USA, and disqualifies him (in my eyes) from placing the interests of Americans high in his mind. I am extremely disappointed, and I feel it shows Gov Perry showed a lack of empathy, understanding, and patriotism in this decision.

    It took cajones to execute the criminal, but not brains. The criminal would have been executed eventually, and a delay could have provided us with a better ability to safeguard Americans and international law around the world.

  2. Cary

    Is there any truth to what my anecdotal experience tells me, that China will jail ethnically Chinese foreign nationals, but just deport other arrested or convicted foreigners?

    1. Stan Post author

      Not always of course, but yes, all else equal, ethnically Chinese more likely to go to jail than other foreigners. I’m also basing this on anecdotal evidence since I haven’t seen numbers on that.

    2. D

      There were a couple expat white kids jailed for a few months recently for breaking into a computer store in Beijing; there’s a white guy from the US in prison outside Beijing for a very long time because he murdered his wife; there was the white guy in Shanghai about 5-6 years ago who went to prison for a few years because he ran a DVD counterfeiting business…. the list can go on and on — almost none of these are worthy or reporting, so you do not hear them unless you are a lawyer or have friends who are lawyers who talk about their litigation 😉

      I think where confusion on what you state lies is that many “ethnically Chinese foreign nationals” are actually dual passport or dual citizens of China and a second country. China does not recognize dual citizenship, but the US/UK/others do. So if a “ethnically Chinese foreign nationals” comes to China on their PRC passport– they are jailed as a local even if they have a foreign passport, and there is not much a foreign country can do. Is that correct Stan?

      1. wwww

        for a dual passport holder, if you enter China with a chinese passport, you save money/trouble obtaining a visa, and you can visit tibet etc without a permit, and stay in any hotel, but you wont be able to shift your status and seek consulate protection during your stay. Every chinese with dual passport, like myself, knows that. I wonder under what status Xue Feng entered china.

  3. Roadblock

    See Medellin v. Texas, 552 U.S. 491 (2008). The SCOTUS said the Vienna Convention is not “self-executing.” 6:3 split, with Breyer, Ginsberg and Souter dissenting. Stevens wrote a concurrence. A governing precedent squarely on point, and an extraodinary performance of mental gymnastics by Roberts, C.J., which should supply ample ammunition to anti-American judges all around the world in the fullness of time.