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

Jan 25, 2019

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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