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US Order Closing Chinese Consulate in Houston: When Action and Reaction Are Not Equal and Opposite

It was Isaac Newton who taught the world that action and reaction are always equal and opposite in physics. In the social sciences, there is nothing like equality of action and reaction, but the word ‘opposite’ features everywhere in international relations, especially in terms of force relationships. The issue of inequality in interactional relations is so much pronounced to the extent that Member States of the international community have to engage in the politics of balancing of power. The mere engagement in the balance of power necessarily implies that there is a situation of imbalance, centripetally or centrifugally.

In fact, contemporary international relations is increasingly becoming more disorderly because of increasing orders and counter-orders that have come to characterise bilateral ties between the major powers, on the one hand, and between the major powers and aspiring major powers, on the other. The bilateral ties between the United States and the People’s Republic of China (PRC or Beijing) constitute a good manifestation of the emerging disorderly situation.

For various reasons, the relationship between the United States and the PRC has tended more towards power rivalry, and therefore, it cannot be rightly described as good since the end of World War II for one main reason: rivalry between communism and capitalism that operate in the two countries. They are ideologically very antagonistic. For instance, the political crisis in the Hong Kong is nothing more than a contest between communism and capitalism. Hong Kong has been exposed to a capitalist lifestyle of freedom, openness, and economic productivity since 1842 when Hong Kong was ceded to the British on lease for ninety-nine years. At the end of the lease in 1997, the policy of ‘one country, two systems’, as agreed to in the 1984 Sino-British Joint Declaration on the return of Hong Kong to China, became a new noisome problem in China’s relationship with Western Europe, particularly with the United States.

Another important reason is the fact that the United States and China do not have any former colonies. Consequently, they do not have a direct opportunity of an exterritorial space through which to project their national power, especially in terms of exploitation of local mineral resources. This situation compels both countries to look outwardly for strategic support which sometimes has taken the format of a Cold War. It is on record that the United States took an active part in the Franco-British decolonisation processes that led to the independence of many African countries in the early 1960s.

There is also the perception of inferiority-superiority factor which stimulates mutual suspicions in the relationship. In the classification of race in the world, the Westerners, the white race (Caucasoid), have made everyone to believe that they are the first or the best race. All other races, that is, the Negroid (black), Australoid (Australian aborigine and Papuan, Capoid (Bushmen Hottentots) and Mongoloid (Oriental/Amerindian) under which the Chinese fall, come after. They are considered inferior in international politics.

Most unfortunately, the Chinese quietly object to any argument of inferiority complex, and have in the past three decades, been making sustained efforts to demonstrate their capacity and capability at self-development, as well as readiness to take over global leadership from the United States, but which the Washingtonian authorities do not show any preparedness to condone.

The Manu Militari Order and Counter-Order

The non-preparedness of the United States to accept the emerging new status of China has prompted the development of an unhealthy rivalry in various forms. US main strategy is to prevent the increasing role and influence of China in international relations. In this regard, there is no disputing the fact that China has become a de facto military superpower in Asia and has developed technological capability in strategic sectors, such as in the 5G technology and artificial intelligence. The Chinese are much aware of this US anti-China policy.

It is against this background that the United States manu militari ordered closure of China’s Consulate General in Houston, on Tuesday, July 21, 2020 before Friday, July 24, 2020 should be explained and understood. The order is manu militari in character as the US government gave only 72 hours within which the Chinese Consulate General must be closed down, that is, not later than Friday, 24th July, 2020. The order is also the crescendo of the recidivist manifestations of the deepening misunderstanding between the two countries, particularly as from 2018. In the thinking of the Chinese, US hostility to the rise of China as a global economic power must be promptly and effectively resisted.

One important background to the issuance of the order of closure is trade dispute. Washington has not only been complaining about China’s unfair trade practices, but has also accused China of stealing US intellectual property. The United States argues that Chinese steel and aluminium imports into the United States are quite cheap because they are subsidised by the Government of China. Washington sees this practice as dumping and therefore, an unfair trade practice. Donald Trump also considers as unfair the forceful transfer of American technology to China.

It was in light of these considerations that, in January 2018, Donald Trump put in place 30-50% tariffs and barriers on solar panels and washing machines. Two months after, 25% tariff was placed on steel and 10% on aluminium. Even though the tariffs were of general application, the tariffs were specifically hiked in the context of China, which also imposed retaliatory tariffs on US exports to China. As explained by Donald Trump’ in March 2018, ‘trade wars are good and easy to win.’

The situational reality in the relationship, however, has clearly shown that there is neither any goodness in any trade war, as both countries have suffered losses, even though in varying degrees. In fact, in August 2019, Donald Trump had to re-explain himself by declaring that he ‘never said China was going to be easy.’

In essence, Donald Trump imposed tariffs in the belief that US trade deficit with China could be nipped in the bud. In terms of further strategy, the United States adopted the policy of moving away from multilateral, to bilateral, framework in US economic relations with China. The belief is also that the United States will be better placed to negotiate and influence others bilaterally, rather than multilaterally, in its economic ties with China. This will be possible if China engages in fair trade by stopping the US-perceived Chinese theft of intellectual property.

Apart from the question of trade dispute, alleged theft of intellectual property and forceful transfer of American technology to China, there is also another important question, that of Hong Kong. The United States signed an agreement with the Government of Hong Kong, officially referred to as a ‘Special Administrative Region’ by Beijing. The agreement gave Hong Kong a special status which has enabled it to enjoy special and preferential treatment, especially in the area of economic ties.

However, earlier in July 2020, a new Security Law was enacted by the Beijing parliament and introduced for implementation in Hong Kong. While China sees the security law as a reflection of its sovereignty over Hong Kong and in application of the 1984 Sino-British Joint Declaration on the return of Hong Kong, the United States, in particular, and US allies, in general, hold a contrary view. They argue that the security law is a threat to the principle of ‘One Country, Two Systems.’ They raise the issue of violations of human rights and of the 1984 Joint Declaration. In fact, the United States has set aside the agreement done with Hong Kong. Thus, controversy over the status of Hong Kong has become another distant, but major dynamic of the closure of the Chinese Consulate General in Houston, Texas.

A third critical background issue to the closure is the question of Covid-19. Donald Trump sees it as a ‘China Virus’, arguing that it originated from a Chinese laboratory in Wuhan, China. This Donald Trumpian view directly conflicts with the official position of the US intelligence community, which says that COVID-19 ‘was not man-made or genetically modified.’ China has simply responded by alleging that the origination was with the complicity of the United States.

As for the immediate causal factors of the order, perspectives have varied. However, the first, and perhaps the most important consideration, is deductive: Donald Trump might have considered that the United States has more to gain, while China has more to lose with the closure. The US gain is from the perspective that an end will be put to Chinese espionage and theft of intellectual property.

One school of thought has argued that it is a manifestation of the emerging Cold War between the two countries. There can be a scintilla of truth in this observation in that China is thriving tooth and nail to be a credible global power, especially beginning with the acquisition of a global superpower economic status, but to which the United States is not favourably disposed, be it at the limited level of global economic status or otherwise, especially militaro-technological. Anything that has the potential to boost any rise of the Chinese to the detriment of United States’ leadership of the world, is not acceptable to the United States.

Explained differently, Professor Jean-Baptiste Duroselle of the University of Paris-Sorbonne has theorised that ‘tout empire périra’, that is, ‘every empire shall perish.’ ‘The Chinese not only share this view but also strongly believe that the tenure of US leadership of the world has expired. Therefore, a global leadership vacuum has been created and has to be filled. The United States of Donald Trump vehemently opposes this view. There is nothing like any leadership vacuum not to talk of filling it. In fact, Donald Trump has a policy of ‘America First’ and ‘Making America Great Again.’ These twin policies necessarily imply the subjection of all other national interests to the whims and caprices of US exclusive interests.

Another immediate pointer to the closure is the allegation by the United States that China is harbouring at its Consulate General in San Francisco, a Chinese fugitive biology scientist, Tang Juan, who is accused of visa fraud by the US government. US government has instituted a court prosecution against her for having lied about her connection with the Chinese military intelligence when applying for US visa.

In the thinking of the Donald Trump administration, the Chinese are preventing the trial of the fugitive by safe-keeping him in a Chinese diplomatic premise that is protected by both the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations.

Grosso modo, the US alleges that China has engaged in ‘massive illegal spying and influence operations’, as well as interfering in the ‘domestic policies’ of the United States and coercing ‘US business leaders’, and also threatening ‘families of Chinese Americans residing in China, and more.’ As summarily put by Ms. Morgan Ortagus, spokeswoman for the State Department, ‘we have directed the closure of PRC Consulate General Houston in order to protect American intellectual property and American’s private information,’ in other words, it was closed in the national interest.

The reaction of China, as at the time of our writing, has been quite measured but with a clear warning. As explained by Mr. Wang Wenbin, the Chinese Foreign Ministry spokesman, the order of closure was ‘outrageous and unjustified,’ it violates international law, the United States has only been ‘shifting the blame to China with stigmatisation and unwarranted attacks, and more significantly, if the United States insists ‘on going down this wrong path, China will react with firm counter-measures.’ Mr Wang reminded that ‘in reality, in terms of the number of Chinese and American embassies and consulates in each other’s place, the United States cannot but suffer more.

And true enough, the Chinese Foreign Ministry has lent credence to the statement of Mr. Wang by warning all Chinese students in the United States ‘to be on guard,’ as the ‘US law enforcement agencies have stepped up arbitrary interrogations, harassment, confiscation of personal belongings and detention targeting Chinese international students in the US.’

The Chinese have not only submitted that the United States had destroyed the ‘friendship bridge’ but is already considering that a Chinese dissident, Chen Guangcheng, who escaped from his house arrest, might be hiding in the US Embassy in Beijing, the third biggest US missions in the world, because the embassy has been legally out of reach in recent times.’

The Diplomatic Law Dimensions

The international dimensions at the diplomatic level are noteworthy, because of the threats they pose to the maintenance of global peace and security. The first dimension is the status of a Consulate General in international law and relations. For instance, the Houston police force made it clear in its twitter handle that its officers ‘were not granted access to enter the building’ (Chinese consulate). In this regard, have the US security agents the right to enter the consulate without the express consent of the Consul General, Cai Wei, in Houston?

Secondly, the policemen and other security agents might have been informed about smokes coming out from the consulate, and thus prompting the Houston police to come to the consulate. In this regard, must the security agents, especially the fire fighters, ensure a preliminary consent of the consulate before entering it to extinguish the fire? If yes, what happens in the event the fire extends to neighbouring buildings?

Apart from possible fire outbreak, has the United States any right to enter the Chinese diplomatic premise under the guise of the mission hiding a wanted fugitive? If the order of closure is meant to expect that the fugitive hiding in the consulate would come out, and by so doing, opportunity would exist to arrest the fugitive, or that the espionage activities in the consulate would be brought to an end as a result of the forceful closure, US policy makers of the decision must be dreaming. It is Chinese law that applies within the consulate and unless the closure is that of consulate-non-grata and this brings us to a third dimension, the notion of a consulate.

The Chinese Consulate General is a consular post. A consular post refers to any consulate-general, any vice-consulate or to any consular agency. A consulate can exist as an integral part of a diplomatic premise or outside of it. This is largely a resultant from the extent of the importance of a relationship and the volume of bilateral business, as well as the population size of the citizens of a sending state, in which case there will not only be room for the establishment of a consulate general, but also for a vice-consulate or consulate agency.

Two points are worthy of note here. First is the membership of a consular post which includes consular officers (those performing consular functions, either as career consular officers or honorary consular officers), employees and members of the service staff. Secondly, members of a consular post, who are nationals or permanent residents of the host State, do ‘enjoy only immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions.

More interestingly, Article 44(3) provides that ‘members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to protect official correspondence and documents relating thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the sending State. This provision is raised here because of the fugitive believed to be hiding in one of the Chinese Consulates or in the US embassy in the context of a Chinese dissident in Beijing. The point being made here is that there is nothing, absolutely nothing, a receiving State can do beyond declaring a diplomatic or a consular mission unwanted by virtue of international law. In this regard, for instance, even if the fugitive does not have an official status of a consular officer, the mere fact that the alleged fugitive is rightly or wrongly believed to be spying and stealing documents for Beijing, is the more reason for the Government of China to want to take all steps to protect the fugitive.

Fourthly, Senator Marco Rubio of Florida, the Acting Chairman of the Senate Intelligence Committee, has said that the Chinese Consulate General is nothing more than a central node of the Communist Party’s vast network of spies,’ that ‘China has engaged for years in massive illegal spying and influence operations,’ and that those ‘activities have increased markedly in scale and scope over the past few years.’ In this regard, who has the right of oversight in a diplomatic mission that has an exterritorial status? Is there any country whose diplomatic mission does not attempt to spy? For as long as there is no one caught for an espionage offence, there is no espionage. Espionage exists and known when an agent is caught. Besides, can a consulate be closed on the basis of its being used for espionage activities?

As made clear by Mike Pompeo, US Secretary of State, President Trump has said ‘enough. We are not going to allow this to continue to happen. We are setting out clear expectations for how the Chinese Communist Party is going to behave and when they don’t, we’re going to take action that protect our security, our national security, and also protect our economy and jobs.’

A second diplomatic law dimension is the question of non-interference. As noted by Ms. Ortagus, spokesperson for the State Department, the United States ‘will not tolerate the People’s Republic of China’s violation of our (US) sovereignty and intimidation of our people, just as we have not tolerated the PRC’s unfair trade practices, theft of American jobs, and other egregious behaviour… States have a duty not to interfere in the internal affairs’ of other countries.

True, Ms. Ortagus can be right if she uses the word ‘interference’ to imply ‘intervention.’ In international diplomatic practice, interference is not the same thing as intervention. What is prohibited internationally is ‘non-intervention’ and not ‘non-interference’. Article 2(7) of the UN Charter is very clear on this point: ‘Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter, but this principle shall not prejudice the application of enforcement measures under Chapter VII.’

Put differently, the principle of non-intervention does not apply in cases of enforcement of collective security, covered under Chapter VII of the UN Charter. The notion of intervention implies the use of force when interfering. Ordinarily, when there is no use of force, interference applies and there is no single day that there are no interferences in the domestic affairs of other countries by governments and their general public, and by way of commentaries, appreciation or condemnation and observations. Consequently, accusing China of interfering in US domestic affairs may not be a big deal, but it is a serious matter when it is about espionage, generally considered as a crime by all countries.

There are other diplomatic law dimensions, directly or indirectly raised under international economic relations, such as allegations of theft of intellectual property, forceful transfer of US technology, controversy surrounding ownership of an island in the South China Sea, etc. All put together, the closure of the Chinese Consulate General in Houston is a case of the steam accusing the kettle. The US is reportedly giving asylum to a wanted Chinese dissident in Beijing, while China is protecting another Chinese fugitive in its Consulate in Houston. China does not want a territorially independent Hong Kong, which is precisely what the Westerners want. China is increasingly becoming more assertive but no one wants China to make changes to the status quo. In fact, various sanctions are taken against China under various guises: fleeing Hong Kongers are given a warm welcome in the United Kingdom and Australia, with the ultimate objective of undermining the new national security law. The UK announced the blockage of Huwei in support of the United States, thus putting an end to the so-called ‘golden era’ in the Sino-British ties. And true, China has retaliated by also ordering the closure of the US Consulate in Chengdu in the South West. With the US order and Chinese counter-order, the implications have neither been equal nor opposite. It has been overreaction and Cold War. Which way forward for Nigeria?

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