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Law and injustice in China

Richard O’Halloran cut a disconsolate figure on Prime Time last week. It must have been so stressful for him to recount his story knowing his family would be watching back home with many thousands of kilometres away.

Exit bans are lawful in China under the Exit and Entry Administration Law adopted in 2012. It can apply if you are merely ‘involved’ in unsettled civil cases. In the O’Halloran situation, there is no unsettled case. The Chairman of the company involved is now in jail and his routes to an appeal have been exhausted.

The treatment of Richard O’Halloran is one of the reasons why anyone with business dealings in China is strongly advised to settle disputes with Chinese employees or a Chinese company from outside the country.

The Irish Department of Foreign Affairs has a travel advisory applied to China for business people based on the risk of ‘arbitrary detention’ and the risk of ‘arbitrary application of local laws’. Taking people hostage as leverage in negotiation is an outrageous breach of human rights.

Sadly, Richard is not the only foreigner to be held without charge in China.

Brother and sister, Victor and Cynthia Liu were prevented from returning to their home in the US when they travelled to China in November 2018. Their father is accused of being a central player in a $1.2b fraud and so the siblings are being held as hostages.

When President Trump raised the matter with Xi, Trump is reported to have shrugged his shoulders when told by the Chinese that they were also Chinese citizens and he let the matter drop. Trump wasn’t aware that China doesn’t recognise dual nationality.

In some cases, foreigners are collateral damage when relations with China become frosty.

In August last year Cheng Lei, an Australian national and news anchor at a state run TV station, was arrested on the same charge. She was placed into Residential Surveillance at a Designated Location (RSDL), a so-called ‘black jail’. Last month, she was moved to formal detention and the Australian government expect her to languish in jail for some time.

The last Australian journalists left China last year after being warned by the Australian embassy that they could be in danger as relations between Beijing and Canberra deteriorated.

Another scandalous case was triggered when the US sought the extradition of Huawei’s CFO from Canada. In retaliation, China disappeared two Canadians, former diplomat Michael Kovrig and businessman Michael Spavor. In June last year, they were both charged with espionage.

Sometimes an exit ban is used to pressure family members to return to China. These types of bans are in place in respect of citizens from many countries across the world.

It is common in Ireland for a court to require a citizen to hand in his or her passport but only when being investigated for a crime. At present, Richard is not accused of anything. He is not even a witness any more. There are no circumstances where a witness can be detained against their will. He has also been denied the right to have a lawyer present at hearings.

The Executive Director of the Center of Asian Law in the US, Thomas Kellogg, wrote in 2019 that he could not find any example of an indefinite ban on travel being upheld by an international tribunal in respect of someone not themselves accused of a crime.

As Mr Kellogg noted, “it is part of a larger pattern of Beijing’s growing disregard for the rights of foreign nationals present in China, when those rights come into conflict with the Communist Party’s own political priorities”.

In International law, article 13.2 of the Universal Declaration of Human Rights (UDHR) states that “everyone has the right to leave any country, including his own, and to return to his country.” Article 12.2 of the International Covenant on Civil and Political Rights (ICCPR), which China has signed but not yet ratified states that the right to leave can only be subject to restrictions if those limitations are “provided by law, are necessary to protect national security, public order or the rights and freedoms of others.”

As a member of the European Parliament, I will be asked to ratify an investment agreement with China announced at the end of December 2020. The European Commission is satisfied that the commitment in the agreement by China to ratify International Labour Organistation Conventions on forced labour can be relied upon (nothing about implementation).

This might be credible if China would at least observe the terms of the Universal Declaration of Human Rights and release Richard O’Halloran back to his family.

To complete the Kafkaesque nightmare, Richard was informed in January that the exit ban had been lifted. He went to the airport hoping to get home in time for his son’s 14th birthday but was stopped again.

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