Academic journal article American University International Law Review

Gimme Shelter: Does the United States Violate International Law by Offering Protection to Chen Guangcheng at the American Embassy in Beijing?

Academic journal article American University International Law Review

Gimme Shelter: Does the United States Violate International Law by Offering Protection to Chen Guangcheng at the American Embassy in Beijing?

Article excerpt

I. INTRODUCTION

In today's complicated world, the distinction between international and domestic issues can be a fine line, and one that States are still in the process of settling.1 This is especially true for embassies and diplomatic missions, which, among their various duties, must assist with the processing and transportation of refugees.2 Furthermore, consuls have in the past provided protection to foreign nationals when such persons have previously been persecuted by their home State.3 But may a State's embassy provide protection to a national of the host State without violating international law?

This question arose in late April of 2012, when Chen Guangcheng escaped from unofficial house arrest in Shandong Province, ultimately seeking protection from American diplomats in Beijing.4 The U.S. Embassy sheltered Chen, and the Chinese government condemned the undertaking as violating international law.5 However, China also potentially violated international law by subjecting Chen and his family to torture during his house arrest.6

This comment will first discuss the relevant international law applicable in this case, including the Vienna Convention on Diplomatic Relations, the Convention Against Torture, and jus cogens norms.7 It will then discuss whether China's treatment of Chen constituted a violation of international human rights laws, justifying encroachment into China's internal affairs by the United States.8 The comment will conclude that protecting victims of human rights abuses does not amount to interference with the internal affairs of the host state.9 Finally, the comment will recommend that the United States clarify its policy regarding Article 41 of the Vienna Convention on Diplomatic Rights and that the Convention Against Torture should include a provision that Article 3 of the Convention applies without geographic limitations.10

II. BACKGROUND

A. FACTUAL BACKGROUND

Chen, blind since childhood, is a self-taught lawyer from China's rural Shandong province.11 In 2005, Chen filed a class-action lawsuit against officials in his province, accusing them of forcing women to undergo late-term abortions and sterilization under China's one-child policy.12 Chen was placed under house arrest beginning in August 2005 and was formally arrested in June 2006 for allegedly disrupting traffic and damaging property.13 After serving his four-year sentence, Chen was released from prison in September 2010.14 Following his release, Chen and his family were placed under house arrest and isolated from the outside world,15 even though no additional charges were brought against Chen.16

While under house arrest, Chen and his family were prevented by the local government from communicating with the outside world.17 Any attempt by Chen or his wife to leave or contact the outside world resulted in beatings from guards hired by local government officials.18 Moreover, anyone attempting to visit Chen was accosted, beaten, and turned away by the guards.

Chen escaped from house arrest in late April 2012 and sought protection at the American Embassy in Beijing.19 Once Chen was inside the embassy, American officials negotiated with Chinese Foreign Ministry officials to guarantee his protection should he leave the embassy.20 Since Chen leftShandong province, his remaining family members have suffered at the hands of local officials.21 Local police beat Chen's brother as well as his brother's family late one night, and Chen's nephew was arrested when he attempted to fight offthe intruders.22

Eventually Chinese and American officials reached an agreement whereby Chen, along with his family, would be allowed to travel to New York City, where he could study law at New York University.23 Chen and his family leftChina on May 19, 2012.24 However, the agreement did not stop Chinese officials from condemning the United States' actions, declaring that the United States had violated international law by protecting Chen during his time at the American Embassy. …

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