China (PRC)

By Nathan Smith.

Judge in Huawei


 

  • Judge in Meng Wanzhou case focuses on fraud allegations and ignores the sanctions-busting.

  • Says Canada’s laws do not recognise sanctions-busting as a crime

  • While some rules are created to regulate the global system, it is an illusion to call these things “laws”

  • The Meng case highlights that international law is largely a fiction, no matter how much people want to believe in it


 

Sometimes a judge makes a comment that highlights a weird assumption most people would prefer not to consider. Associate Chief Justice Heather Holmes, the judge in control of the ongoing extradition case against Huawei chief financial officer Meng Wanzhou, has been quick during this trial to point out irregularities in the prosecution’s case. Meng is accused of misrepresenting Huawei’s control over Skycom, a company that sold computer equipment in Iran, during a 2013 presentation that allegedly put HSBC at risk of violating US sanctions against Iran. The US team wants to try Meng in New York for her part in the act.

But before they can do that Holmes must find her guilty of committing a crime that is on the books in Canada. After all, sanctions-busting is not a crime in Canada. So, Holmes is keeping the extradition trial within the “four corners” of fraud law since that is a crime in Canada. “Isn’t it unusual that one would see a fraud case with no actual harm many years later and one in which the alleged victim, a large institution, appears to have numerous people within the institution who had all the facts that are now said to have been misrepresented?” Holmes asked.

Whatever her ruling, the ultimate decision over extradition rests with Canada’s justice minister. But Holmes’ comments represent a rare time to see how the world actually works, rather than how people want it to work.

Holmes is a Canadian judge and as such her jurisdiction is Canadian law. Canada is a sovereign nation with roots in British law. But it also shares a lot of legal precedent with the US (as do many other Western countries). But Canada’s laws do not extend past its borders.

It might sound trite to point that out, since everyone knows countries are independent. But Holmes’ avoidance of prosecuting Meng for sanctions-busting reveals an important truth: there is no such thing as international law.

While the United Nations (UN), for example, does make rules to regulate the global system, it is an illusion to call these things “laws.” The UN is not an independent body. The UN is the sum total of the international community’s thoughts and goals – in other words, incoherent and broken.

Sanctions are sub-category of international law, which means sanctions are also a fiction. When the US places sanctions on a country and then claims a third-party has broken those sanctions (as Huawei is alleged to have done), the US is assuming that international law exists. But it doesn’t.

International law is a fiction because there are no international statutes or enforcement agencies other than the UN, which enforces nothing unless the US military says it can. The UN cannot make law and any rule it makes is automatically toothless because laws are only laws if they can be enforced, which the UN has no power to do.

International law has norms. And to the extent two sovereign nations in a dispute agree to appear before an international court to resolve their dispute does not imply they are obligated to do so, or that failure to do so would be illegal. The process of dispute resolution is voluntary. Furthermore, the outcome of a dispute is largely a result of the real-world threats placed on a weaker country by the stronger.

For instance, if Huawei did break sanctions, then any punishment it would receive is based on what the US decides to do, as a sovereign state, not what some “international court” stipulates.

Washington could block Huawei from doing business in the US, compel its allies not to work with Huawei or issue a series of fines. But no international mechanism exists to force Huawei to pay those fines. And no police force can stop US allies from working with Huawei if they want to risk angering the US. Washington’s fury is the real basis of any adherence to “sanctions.”

Just because sanctions are on a country does not mean they have the force of any national law. Governments and businesses are free to ignore them.

Judge in Huawei

Holmes is reminding listeners that international sanctions aren’t worth the paper they are printed on. But this would also include nuclear arms control treaties, human rights treaties and climate change decisions. They are all worth nothing if any signatory decides it doesn’t wish to follow the treaties anymore.

Consider how the US, by upgrading its nuclear capabilities and missile forces, actively broke its arms control treaty with Russia, a country with the ability to destroy all human life. Do people really think the US government cares about a UN resolution? Does any nation care about sanctions if they no longer make sense to follow?

Nations care about their own laws. A government is concerned about human rights treaties to the extent that some subsection of its own code describes how its soldiers should treat enemy combatants. But it only cares about this because it’s part of the code written in its national legislation.

If the government doesn’t act in accordance with that code, it is breaking domestic law and will go to court to defend itself. Individuals who break such a law can go to prison if convicted. But they wouldn’t be convicted of violating the Geneva Convention, only of violating their domestic laws.

The only, repeat, only reason any country abides by a treaty, sanction or resolution is when it becomes part of that country’s law through enacting legislation. The moment the legislation is repealed, the treaty is broken and there is no international recourse.

While this is the box within which Holmes presides over Meng’s case, Holmes has more pressing concerns. They say the higher a person rises in an organisation, the less their role is about work and the more it becomes about politics. The same is true for the law.

Holmes is one of the top legal minds in Canada. She was appointed to her current position by the Canadian prime minister. Her role is not simply to judge a case on its merits (although, Holmes will be trying hard to remain objective). Her role unfortunately must consider the political ramifications of her decision as well.

This is a tough situation. On both sides of the case are enormous behemoths (the US and China) that have each decided Meng’s case is a matter of their national prestige. Chinese officials are already whispering that Canada will face dire consequences if Meng is extradited. And it is certain that the US is making similar suggestions on the side.

Holmes understands that the US wants the world to see it as an international policing agency. Even Holmes’ boss Justin Trudeau said that Canada must follow the “rule of law.” Trudeau’s political naivety and China’s manoeuvring make this case strangely revealing.

The only law Holmes must worry about is Canada’s Extradition Act. This gives the Minister of Justice the power to deny an extradition if it is not in the best interests of Canada. Under §. 23(3), the minister can order Meng to be discharged at any time — and the court must comply. Since the politics of this case has nothing to do with Canada, the minister should discharge Meng.

But Holmes can’t wait for this to happen. She is instead stuck with burden of finding a way to make a good decision. But in truth, there is no such thing as a good decision. No matter what happens, Canada will feel some political pain. The best Holmes can do is treat this case like a negotiation where no side leaves the table 100% happy.

Holmes’ focus on the fraud aspect of the case is the right strategy. Unfortunately, she must also find a way to ensure Canada stays on the right side of its two largest trade partners.

Latest Updates
Related Articles
Related Articles by Jurisdiction
Private wealth and estate planning for People’s Republic of China citizens and residents
Driven by an exceptional period of Chinese entrepreneurship in the last decade, high-tech manufacturing, IT and fintech are now key components of the Chinese economy ...
Determining dominant position in the cinema industry
Award-winning Chinese movie director Feng Xiaogang hit the headlines recently when he got into an online flame war with Wang Sicong, whose father owns Wanda Cinema. Feng argued that his latest film, I am not Madame Bovary ...
Acknowledging the Labour that goes with the Love – a look at extended maternity leave in China
Lesli Ligorner and Mitchell Mosvick of Paul Hastings shine a light on the steps taken by the Chinese government to improve the lives of working mothers. Extended maternity leave benefits, greater protections for new ...
Latest Articles