In this trial, a request by the Australian consulate to have a representative present at the proceedings was turned down, even though it involved an Australian national, Stephen Hu, a top Rio Tinto official. For experts, the presence of an outside observer is crucial to prevent abuses by the court and the prosecution, and it can also help those on trial and their attorneys to resist intimidation and the denial of rights.
Jerome A. Cohen, a professor of law at New York University School of Law and an expert in Chinese law, noted in an article published by the South China Morning Post that the People’s Republic of China (PRC) and Australia signed a consular agreement, which allows both parties to have a diplomatic representative attend trials involving their nationals in the other country.
When the Australian government sought reconsideration of Beijing's refusal to permit Australian consuls to attend the closed session Stern Hu's trial, Foreign Ministry spokesman Qin Gang dismissed the request by stating, "The case would be handled according to Chinese laws". China's "sovereignty, especially judicial sovereignty", he said, takes precedence over its binding international agreements.
This, according to Cohen, represents a break with Beijing’s foreign policy after it came out of its isolation in October 1971 and took a seat at the United Nations. For years, the PRC tried to show itself as respectful of its international obligations, even if it tried to define them its own way to justify its frequent human rights violations.
In fact, Cohen writes that in June 1995, “the ministries of foreign affairs, public security, state security and justice, together with the Supreme People's Court and the Supreme People's Procuracy, jointly issued an instruction on the handling of foreign-related cases”, recognising that “if a Chinese consular agreement provides for consular attendance at trials, that commitment must be honoured even in a closed trial and no domestic law can interfere with the international obligation.”
What is more, the principle that in cases involving foreigners, China's international commitments trump domestic law precedes the 1995 instruction. This is a stark contrast with recent Chinese actions in which the authorities disregarded their own laws as well as international norms.
China’s recent cavalier attitude towards its international obligations is nothing new. In December 2009, the British government and human rights organisations lodged many pleas and then protests against the execution of an alleged heroin smuggler, British national Akmal Shaikh. He was denied an adequate psychiatric assessment to determine whether he should be held responsible for the offence.
Equally, two months ago the trial of famous dissident Liu Xiaobo, sentenced to 11 years for exercising his international and domestic right to free expression, generated worldwide protests to no avail. As in previous cases, spokeswoman Jiang Yu, again without substantive argument, categorised such protests as "gross interference in China's judicial internal affairs" that fail to "respect China's judicial sovereignty".
Now everyone is waiting to see what China will do.