China's Sanctions and Rule of Law: How to Respond When China Targets Lawyers

• Author: Thomas D. Grant, F. Scott Kieff
• Pages: 167-198

China’s Sanctions and Rule of Law: How to

Respond When China Targets Lawyers

T

HOMAS

D. G

RANT

* & F. S

COTT

K

IEFF

**

The People’s Republic of China (PRC) has begun to use sanctions against

people who speak out against its policies.

1

Well-known are the sanctions

that the PRC’s Foreign Ministry Spokesperson announced on January 20,

2021 against twenty-eight persons, both named and unnamed, who recently

served or were then serving in the Trump administration, including the

then-Secretary of State and National Security Adviser.

2

On March 26, 2021,

however, the PRC announced sanctions against a less conspicuous target:

Essex Court Chambers, a set of barristers’ chambers in London known for

commercial work and investment arbitration.

3

What ostensibly provoked

China’s unusual move was a hundred-odd-page legal opinion. Four

barristers in Essex Court—Alison Macdonald QC, Jackie McArthur, Naomi

Hart, and Lorraine Aboagye—had supplied the opinion to address whether

China might have international criminal responsibility for crimes against

humanity and genocide against the Uyghurs.

4

If China adopted sanctions against a group of lawyers in private practice in

a mere fit of pique, then policy makers would have little reason to give the

* Thomas D. Grant is a Fellow of the Lauterpacht Centre for International Law at

Cambridge University. He is a former U.S. designee to the Permanent Court of Arbitration

and served as Senior Advisor for Strategic Planning in the U.S. Department of State’s Bureau of

International Security and Nonproliferation and in the Office of the Under Secretary for Arms

Control and International Security, 2019–2021.

** F. Scott Kieff is a professor at George Washington University Law School. A

commissioner of the U.S. International Trade Commission from 2013–2017, he has served as

an adviser to high-level government officers during the Bush, Obama, and Trump

Administrations on national security and economics.

1. Foreign Ministry Spokesperson Announces Sanctions on Pompeo and Others, M

INISTRY OF

F

OREIGN

A

FFS

.

OF

C

HINA

(Jan. 20, 2021), https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/

s2510_665401/t1847554.shtml [https://perma.cc/3R8H-8YCC]

2. Id.

3. Foreign Ministry Spokesperson Announces Sanctions on Relevant UK Individuals and Entities,

M

INISTRY OF

F

OREIGN

A

FFS

.

OF

C

HINA

(Mar. 26, 2021), https://www.fmprc.gov.cn/mfa_eng/

xwfw_665399/s2510_665401/2535_665405/t1864366.shtml [https://perma.cc/26UC-V73X]; see

also Essex Court Chambers Statement on Sanctions Imposed by Chinese Government, E

SSEX

C

T

.

C

HAMBERS

(Mar. 26, 2021), https://essexcourt.com/essex-court-chambers-statement-on-

sanctions-imposed-by-chinese-government/ [https://perma.cc/F3QY-UDXF].

4. See generally Alison Macdonald, et al., International Criminal Responsibility for Crimes Against

Humanity and Genocide Against the Uyghur Population in the Xinjiang Uyghur Autonomous Region,

E

SSEX

C

T

. C

HAMBERS

, (Jan. 26, 2021), https://14ee1ae3-14ee-4012-91cf-

a6a3b7dc3d8b.usrfiles.com/ugd/14ee1a_3f31c56ca64a461592ffc2690c9bb737.pdf

THE INTERNATIONAL LAWYER

A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW

168 THE INTERNATIONAL LAWYER [VOL. 55, NO. 1

matter much thought.

5

One would suppose that sanctions against high-

profile public officials merit more concern.

6

And, even sanctions such as

those are perhaps not too much cause for worry. We know that PRC

officials sometimes adopt a hectoring tone out of rhetorical habit rather than

strategic purpose.

7

Why concern ourselves with China’s sanctions unless

they have a direct effect on trade, commerce, or other readily quantifiable

equities?

But China’s recent use of sanctions should not be ignored.

8

Among

China’s sanctions last year, the sanctions against the Essex Court barristers

are particularly troubling.

9

For reasons that policy makers need to

recognize, those sanctions were not mere rhetoric,

10

and salving a bruised

ego was not China’s goal in adopting them. China has a method and a

purpose, and it connects to a larger strategy that China pursues on the global

stage. We need a clear view of how sanctions against private citizens

function: they produce immediate effects on the targets they name, but their

purpose is to produce lasting effects on the wider community to which the

targets belong.

11

The community here particularly concerned is the legal

profession—and it would be a mistake to think China’s focus on that

profession is by chance. There are sound reasons to conclude it is by design.

The time has come to start thinking about how countries for which the rule

of law is not only a core value but also an indispensable tool might respond.

A recent case in the European Union (EU) related to U.S. sanctions

merits a closer look for the lessons it offers in crafting a response to China’s

sanctions strategy.

12

Bank Melli Iran v. Telekom Deutschland,

13

which the

Court of Justice of the European Union (CJEU) decided on December 21,

2021, illuminates some pitfalls for lawyers advising commercial actors as

they manage compliance in a complex environment of conflicting U.S. and

EU sanction regimes.

14

The case should also interest policy makers because

it illustrates how one sovereign has used a so-called “sanctions blocking”

5. Id. The barristers wrote the opinion on instruction by the Global Legal Action Network,

the World Uyghur Congress, and the Uyghur Human Rights Project, human rights groups

concerned with the conduct of the PRC government toward the Uyghurs.

6. M

INISTRY OF

F

OREIGN

A

FFS

.

OF

C

HINA

, supra note 3.

7. M

INISTRY OF

F

OREIGN

A

FFS

.

OF

C

HINA

, supra note 1.

8. See id.

9. See M

INISTRY OF

F

OREIGN

A

FFS

. O

F

C

HINA

, supra note 1; see also M

INISTRY OF

F

OREIGN

A

FFS

. O

F

C

HINA

, supra note 3.

10. See M

INISTRY OF

F

OREIGN

A

FFS

.

OF

C

HINA

, supra note 3.

11. See id.

12. Case C-124/20, Bank Melli Iran v. Telekom Deutschland GmbH, ECLI:EU:C:2021:386

(Dec. 21, 2021) [hereinafter Telekom (Judgment)].

13. Id. at ¶ 12.

14. As to the corporate compliance issues that Telekom Deutschland raises, see Thomas Grant

& Scott Kieff, Warnings And Guideposts From EU Sanctions Blocking Case, L

AW

360 (June 4, 2021,

5:43 PM) https://www.law360.com/articles/1390362/warnings-and-guideposts-from-eu-

sanctions-blocking-case [https://perma.cc/W4KC-R2F3] (addressing CJEU Advocate General

Hogan’s opinion of May 12, 2021 in that case, hereinafter Telekom (Advocate General’s

Opinion).

THE INTERNATIONAL LAWYER

A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW