RAMESH THAKUR. When ‘rule of law’ becomes a slogan, not a policy The Huwaei saga- A repost

On 1 December, Meng Wanzhou, chief financial officer of Huwaei Technologies and daughter of its founder, was arrested at Vancouver airport by Canadian authorities. In October, Cuba’s ambassador to Japan and a colleague were refused rooms by the Hilton hotel in Fukuoaka in western Japan. As a US-based firm, a company official explained, Hilton is obliged to comply with worldwide US sanctions on Cuban officials. City authorities retaliated that Hilton’s actions were in violation of Japanese law. Of course, no foreign owned hotel operating in the US would go unpunished if it violated US laws.

Thus geopolitics infects the operation of national laws across legal jurisdictions. US prosecutors requested Meng’s arrest and want her extradited on suspicions Huawei was shipping US-origin products to Iran in violation of US sanctions. Analysts, and not just Chinese, condemned Meng’s arrest as tantamount to “kidnapping” and “political hostage-taking.”

This was never not going to have political overtones and repercussions. Insisting that “the rule of law” must prevail substitutes a simplistic slogan for considered policy. When President Donald Trump jumped into the fray on 12 December to say that he could intervene in the Meng case if it helps to repair US relations with China, he instantly politicized the legal case by making Meng a bargaining chip in the escalating bilateral trade dispute with China.

Why should China fear or tolerate the detention of one of its leading citizens transiting through a Canadian airport en route from Hong Kong to Mexico? An equivalent would be for Beijing to impose unilateral sanctions on firms doing business with Taiwan, and call for the arrest of their executives in third countries like Japan and South Korea. China’s retaliatory arrests of two Canadians was a predictable if unjustified response.

Meng had not broken any Canadian, Chinese or international law. If anything, the US is the outlier in international law vis-a-vis Iran. Absent adverse findings of Iranian noncompliance, reimposed US sanctions are in violation of UN Security Council Resolution 2231 that endorsed the multilaterally negotiated nuclear deal in July 2015, called on all countries to support it, and prohibits measures to undermine it.

Parts of the US criminal justice system can be badly corrupted by the institutions of special prosecutors and plea bargaining that are designed to secure conviction rather than justice as the outcome. Conrad Black condemns this prosecutocracy that “has produced America’s North Korean levels of prosecution success: a 99 per cent conviction rate, 95 per cent of those without a trial.” Jeffrey Sachs notes that the arrest of top executives for corporate malfeasance is extremely rare in US practice. Meng’s arrest is part of the Trump administration’s “economic war on China, and a reckless one at that.”

US courts reject relief for foreigners subjected to abuse by US officials in US jurisdictions. Maher Arar, a Canadian citizen, was arrested in 2002 while transiting through New York as an international passenger and renditioned to Syria to be tortured by the same regime that the US now condemns. But the US Supreme Court refused to touch his case against US authorities, an outcome denounced editorially by The New York Times as “a bitterly disappointing abdication of its duty to hold officials accountable for illegal acts.”

The political reality is that China and the US are embroiled in a bitter trade dispute that is proxy battle for technological and geopolitical dominance. The US neglect of telecom technology has seen it fall behind and Huawei emerge as the world leader in 5G technology in particular. Now the US is using its global financial dominance to claw back the edge lost to China. Against this backdrop, in Beijing’s perception Meng’s arrest is part of the China containment strategy and it has responded accordingly.

There are other cases of US muscle behind apparently legal disputes. India’s deputy consul-general in New York, Devyani Khobragade, was arrested in December 2013 for alleged labour law viloations. John Kerry was Obama’s Secretary of State at the time. In 2011 Raymond Davis, a CIA contractor in Lahore, shot and killed two Pakistanis. Then-Chairman of the Senate Foreign Relations Committee Kerry went to Pakistan and said: “this case does not belong in the court” because Davis “has diplomatic immunity.” President Obama insisted on diplomatic immunity for Davis under the Vienna Convention, but stayed silent on Khobragade, as did now-Secretary of State Kerry. And in August 2013 Joshua Walde, a US diplomat stationed in Kenya, ploughed head-on into a full mini-bus; US embassy officials rushed him out of Kenya the next day.

A great power is as a great power does. Great powers pursue imperial foreign policies, not ethical ones. The US has never been averse to using the full panoply of its diplomatic clout, military might and financial muscle to protect its interests. There is little doubt that China, a recovering great power, has modelled itself vis-a-vis international law on US precedents. Thus China’s rejection of the UN arbitration court’s ruling on its maritime territorial dispute with the Philippines echoed the US rebuff to the World Court on its judgment upholding Nicaragua’s complaint against US aggression in the 1980s.

In short, setting aside domestic operations of the rule of law and human rights, there is little historical evidence to support claims of a markedly superior US fidelity to international law compared to China. To the contrary, often US actions more closely resemble that of the domineering bully in the global neighbourhood than a country committed to promoting the global rule of law.

Which then leaves purely power considerations and on this Thucydides remains relevant: the strong do what they can and the weak must suffer as they must. China is the most powerful of the non-Western countries that are no longer prepared to accept standards of state behaviour set, policed and arbitrated by the West. Prudence dictates that lesser powers caught in the middle of great power disputes should avoid antagonizing either side: that is precisely the context of the Melian Dialogue as narrated by Thucydides. Prudence also indicates that a great power that believes it has been wronged will seek vengeance, but will do so at lower cost against the weaker ally caught in the crossfire rather than against the major power rival.

Why, in these changing circumstances, should Canada privilege a US law over Canada’s, China’s and international law? Is the loss of national sovereignty any less painful if it has been voluntarily surrendered? Especially when Trump treats allies transactionally as trade competitors and has made the US a completely unreliable alliance leader, this is a highly dubious policy.

Thus Canada’s dilemma in the Meng case is highly relevant to all US allies, none more so than Australian which is exceptionally trade dependent on China.

Ramesh Thakur is emeritus professor in the Crawford School of Public Policy, Australian National University and a former United Nations Assistant Secretary-General

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5 Responses to RAMESH THAKUR. When ‘rule of law’ becomes a slogan, not a policy The Huwaei saga- A repost

  1. David Brown says:

    Gough Whitlam might have raised Australian level of independence but was cut down by the many Australians with lesser vision.

    I wonder how many of Gough’s political enemies and maybe even fair weather friends really wish now that they had supported his leadership rather than letting Australia deteriorate to its now current disgusting state?

    I wonder if Australia’s voters are aware enough to inspire Bill Shorten and his well intentioned colleagues to dramatically raise Australia’s sense of well-being, independence and return to be a leader in civilised behaviour?

  2. Michael Hart says:

    Ramesh it was only a matter of time before other countries, be they China or elsewhere having observed and noted the abandonment. abrogation or ignoring of International Cooperation and the decisions of the United Nations, ICC and other similar tentative international legal systems in world affairs by the United States began to do what they do as well. The arrogance and indifference of the United States and its misplaced perspective that its law triumph aboves all others has been seriously overplayed and now is having consequences.

    Australia and our responses like others (Canada) to detentions and arrests of its citizens is to fall back to a system basically ignored by the United States as it suits, so others now follow suit. The outcome is basically the break down of cooperative and reasonable international protocols and law where national law is sovereign and the mightier the sovereignty the mightier the law. We are wasting our time appealing to protocol and diplomatic niceties.

    There is a second tier of issues playing out here as well that relate to the well worn tactic of Western Capitalist powers using NGO’s, individuals and foreign websites to forment so called colour revolutions and internal domestic discontent in a variety of countries across the globe with the aim on introducing domestic instability and formenting political change, in other words intefering in the elections and politics of other countries. That process did not go unnoticed by internal intelligence and police agencies across the globe either. We like to interpret it as another example of undemocratic and dictatorial governments behaving badly to us superior Capitalist democracies, that is merely spin. The intelligence agencies in a variety of countries have correctly fingered the activity and the processes used, they are not stupid. So now you can expect these types of arrests and detentions to happen more regularly, no more false flags ops and no more colour revolutions. Why do people think China has basically put into detention thousands of Muslims in China when for decades they lived relatively peacefully within their homeland as Muslims? Simple, they are cauterising another well worn tactic used by Western countries and the US of funding and egging on jihadis and other radicals to bring down unwanted regimes or to sow chaos and dissent or even war for political ends. If I was in the Chinese Intelligence Service I would do exactly the same thing and have worked this out as well. No more red colour revolutions in Hong Kong, no more fire and brimstone Jihadi Imans preaching violence and inciting unrest.

    The mess is obvious, when you turn your back on the International Laws and Institutions and do as you want others will have no choice but to do this as well and for good measure or prudentially cauterise and amputate the means and methods of doing this that the West has used for so long. The EU is now getting a taste of this on another level the Brexit drama. the push from Conservatives for the exit from the EU was not about racism or immigration it was the realisation that 400 years of cherished and quite sensible law in the United Kingdom was being usurped and overridden by bureaucrats was at risk. The rest is window dressing it was about legal sovereignty.

    Now where do we go is the question? It will take a long time and a lot of unhappiness around the planet before be reorganise the will and goodwill to restore faith in these institutions and respect for the internal governance of all nations. It was a cornerstone of the Globalised era now it is falling apart as well

  3. Bill Legge says:

    I do greatly fear things will get much, much worse before they get better. As the Imperium loses its capacity to exert soft power, the toolkit is more and more reduced to violence or the threat of violence.

    Those who somehow imagine Australia is in some sort of balance between the declining empire and the rising new /old power are deceiving themselves. We are a colony of the US Empire – wholly owned, lock stock and barrel. If we were to seriously try and throw off the shackles – even a little – to exert some independence, the reaction would be swift, furious, and very likely violent. I remember the fate of the Whitlam Government when it tried to assert our sovereignty – and that was in the days when the US had more tools in the great power toolbox than they do today. However the likelihood of this happening is slight since the shackles are so firmly in the brains of our politicians, media and securaucrats that the possibility of actual sovereignty does not occur.

    There is nothing like a slave who cannot see his chains.

  4. Tony Kevin says:

    Thanks Ramesh Thakur and P and I for a provocative fact-based article. It is uncomfortable as an Australian to be reminded of relevance of Thucydides’
    Melian Dialogue. Australia, trade-dependent on China and (arguably – there are different views on this) security – dependent on the US, finds itself in two sets of crosshairs, Chinese and American . In both cases we are potentially a target of a superpower’s wrath. Sometimes, one just has to stand up to them both.

  5. Jim Kable says:

    I could not agree more. An excellent analysis of the bullying tactics deployed by the US. Release Ms Meng – with apologies, Canada. Restore your goid international reputation by giving us the background shenanigans employed by the US – make the whole thing transparent. And bravo to China, too – in this instance.

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