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

• Author: Grant, Thomas D.

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 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" statute against sanctions that it wishes to counteract. (15) The sanctions concerned in the Telekom Deutschland case are U.S. sanctions against Iran; they aim to impede Iran's nuclear ambitions. (16) The case should interest policy makers, not because it will change anybody's view for or against U.S. Iran sanctions, but because it offers lessons for policy makers as they strategize a way to counteract the serious effects that China's sanctions will have if left unanswered.

1. The Method and Purpose Behind China's Sanctions

   Before strategizing a response to China's sanctions, policy makers need to understand how China intends its sanctions to function--and what China hopes they will achieve.

   China, at first glance, in adopting the sanctions against Essex Court would appear to have a narrow aim. The aim would appear to be to penalize a small and specific handful of critics who have drawn attention to China's egregious record of abuse toward the Uyghurs. (17) On inspection, the effect of the sanctions even on the specific individuals they target would appear to be slight. (18) The four barristers who wrote the opinion about the Uyghurs and the other barristers belonging to Essex Court will no longer be able to travel to China; any assets they might hold in China will be frozen. (19) It is reported that these individuals, or most of them, in fact do not travel to China very often and hold few if any assets there. (20)

   To understand how China intends the sanctions to function, one must widen the aperture and recognize that the people immediately targeted by the Essex Court sanctions are only part of the story. It was Voltaire in his novel Candide who described the death sentence of a British admiral as an act "pour encourager les autres." (21) The admiral in question had displeased the Admiralty, but the real point in sentencing him was to make an example in front of the officer corps as a whole. (22) A better understanding of the Essex Court sanctions is much like that: China certainly was not pleased with the four barristers who wrote the opinion and called China to account for its ill-treatment of the Uyghurs, (23) but it would be a mistake to think that that is where the story ends. With the recent seemingly targeted sanctions, China aimed to provide a demonstration to the legal profession as a whole. (24) And the demonstration has had visible effects. (25)

   A number of barristers affiliated with Essex Court in Singapore quit the chambers shortly after China adopted the sanctions. (26) Toby Landau, a Queen's Council known for his work in international investment arbitration, quit the chambers "with effect from... 2 April 2021." (27) Matthew Gearing QC, a former co-head of arbitration at a major law firm who had planned to move his practice to Essex Court, decided against it. (28) Essex Court removed the legal opinion from its website. (29)

   So, China's method is to make a demonstration--but for what purpose? A reshuffling of nameplates around the Inns of Court in London has resulted from the March 2021 sanctions. (30) But this is only a surface reflection of a deeper effect that China evidently seeks to bring about. (31) We should contemplate that, in fact, China seeks to spread a chill across the legal profession, a subduing influence to stay or silence anybody in the profession who might otherwise advance opinions that call China's conduct into question or advise or represent parties whom China dislikes.

   The legal profession functions under rules resembling those of a guild, but nobody today denies that it is also a business. (32) And, as businesspeople, lawyers seek to keep and increase their opportunities to do business. That means keeping the clients they have and entering new engagements as new clients come along. (33) The converse is that lawyers are tempted to sidestep those who might cost them business in the future. They seldom if ever do this openly; in many rule-of-law jurisdictions, lawyers' binding ethical duties constrain them from such discrimination. (34) Omissions and reticence are hard to detect. However, for a sovereign of China's influence in the world economy, they are not hard to incentivize. With sanctions targeted in a visible way on one group of lawyers, China has communicated a clear incentive to the legal profession. (35) The intended result--the legal profession backing away from certain parties--is pernicious. (36)

2. The Global "Operating System" and China's Revisionist Aims

   And, yet, evidence suggests that the purpose for which China is using sanctions is more ambitious than depriving certain parties and causes of the legal counsel they seek. (37)

   Christopher Ford, a diplomat and national security official in the G.W. Bush and Trump administrations, has argued for a decade that China seeks not to gain mere tactical advantage, but instead to change the "operating system" under which nations and societies function. (38) The 2018 US National Security Strategy stated the case like this: China's goal is "to shape a world consistent with [its] authoritarian model--gaining veto authority over other nations' economic, diplomatic, and security decisions." (39) To shape the world that way means to transform both how countries relate to one another and how they order their own affairs. (40) China's goal is not minor adjustments here and there. (41) It is wholesale revision. (42)

   The conclusion that China aims to place itself at the apex of a new social system on a worldwide scale is not based on guesswork. (43) China's leaders have stated that is what China aims to do. Their invocation of the "Strong Military Dream" and "the great rejuvenation of the Chinese nation" underpin the aspiration to return China to world preeminence, which China held until expanding European empires overwhelmed it in the 19th century and a long internal crisis ensued. (44) in calling to make China once again the most powerful state in the world, China's leaders make clear that a change of the socio-political system goes hand-in-hand with that goal. (45) President Xi in 2013 said that China "must... build[] a socialism that is superior to capitalism, and lay[] the foundation for a future where we will win the initiative and have the dominant position." (46) in his speech in 2017 to the National Congress of the Chinese Communist Party, President Xi predicted that "the Marxism of 21st century China will, without a doubt, emanate more mighty, more compelling power of truth." (47)

   Lest President Xi be misunderstood to mean that China will prevail on the strength of compelling argument, China's conduct evinces a strategy of action. (48) This includes China's strategic lending to low-income countries, (49) conducted without the democratic and...