Mon Feb 5

Does Yang Hengjun have any legal hopes left after receiving a suspended death sentence in China?

Written by: Donald Rothwell, Professor of International Law, Australian National University

The Chinese-Australian academic and writer, Yang Hengjun, has been detained in China for five years on suspicion of spying for Australia.

A secret trial was held in 2021 with no family, friends or Australian consular officials permitted in the courtroom. The verdict was then delayed at least seven times, according to Amnesty International ^[1].

Today, his fate has finally been made clear: Yang received ^[2] a suspended death sentence which can be commuted to life in prison after two years of good behaviour.

Espionage is a capital crime in China, so it is unsurprising he faces the death penalty, though the precise nature of the charges against him have never been made clear. He has always denied the espionage charges against him, as has the Australian government.

Australia will undoubtedly continue to put diplomatic pressure on China to release Yang, but does he have any rights remaining under international law? And how often does China actually use the death penalty?

Yang’s background

Yang was born in China and previously worked in the country’s Ministry of Foreign Affairs and Ministry of State Security.

He later moved to Australia, where he became a citizen in 2002, and then to the US where had been a visiting scholar at Columbia University from 2017. In recent years, he had been a spy novelist and political commentator.

Yang had been detained in China previously in 2011, but was quickly released ahead of a visit to China by then-Prime Minister Julia Gillard.

Foreign Minister Penny Wong said today Australia would continue to advocate on Yang’s behalf at the highest levels, calling the news of his sentence “harrowing”.

Yang’s health has also been failing in recent months. He told ^[3] supporters he thought he might die in prison from a cyst on his kidney that wasn’t being treated properly.

How frequently is the death penalty used in China?

China has a notorious record of imposing the death penalty for a number of different offences. Just how many people are executed, though, is anybody’s guess.

Amnesty International has been actively monitoring capital punishment cases ^[5] globally for a number of years. While there has been a downward trend in the number of countries that retain the death penalty and actually carry out executions, reliable data on China is impossible to attain.

As such, Amnesty no longer includes any Chinese figures in its annual Global Death Penalty ^[6] reports. Various estimates put the number of executions in the country to be in the “thousands” per year.

Last year, the European Union delegation to China reported ^[7]:

The estimated number of death sentences and executions in China exceeds by far that of all other countries taken together. In contradiction to international standards, China also applies capital punishment in the case of non-violent offences.

Does Yang have any rights left under international law?

Yang can still appeal his sentence through the Chinese legal system, which effectively provides him with certain levels of protection until his appeals have been exhausted. However, criminal appeals in China are rarely successful ^[9].

Yang’s ill-health would also not provide any additional legal grounds for his release. Diplomatically, though, this would be a basis for Australia to continue to advocate for his release on humanitarian grounds.

However, unlike the high-profile case of two Canadians, Michael Kovrig and Michael Spavor, who were also accused of espionage and detained by China from 2018–21, Australia has no bargaining chip ^[10] to secure Yang’s release.

Kovrig and Spavor had been arrested shortly after Huawei executive Meng Wanzhou, a Chinese national, was detained in Canada on a US arrest warrant. The two men were released ^[11] hours after Meng was also released from Canadian custody.

Michael Kovrig, centre, embraces his wife and sister after being released from Chinese detention in 2021. Frank Gunn/The Canadian Press/AP

Is there anything Australia can do for Yang now?

Unusually, Yang’s death sentence has been suspended for two years pending good behaviour, after which his sentence may be converted to a life sentence. This is significant as convictions for a capital offence in China are typically followed quickly by an execution.

Yang’s Australian citizenship will have no doubt have been taken into account in this instance.

Legally, however, Australia’s options at this point are very limited. Any formal efforts by Australia to provide Yang with diplomatic protection under international law are constrained while his legal case is still playing out.

Once this has occurred, Australia has no further legal procedures it can use to help Yang, unless China is agreeable to referring the dispute over the imposition of the death penalty to an international court or tribunal.

As China is traditionally reluctant to refer any matters that relate to its sovereignty, including its judicial sovereignty, to any international courts or tribunals, this does not feel like a realistic option.

Yang Hengjun and his wife Yuan Xiaoliang. Chongyi Feng/AP

Has China treated Yang with procedural fairness?

Australia has been consistent in calling for Yang to receive the “basic standards of justice, procedural fairness and humane treatment under international law”, through both the Morrison and Albanese governments.

These rights are deeply entrenched in modern human rights law, including under the Universal Declaration of Human Rights ^[13] and the International Covenant on Civil and Political Rights ^[14].

These rights include the right to a fair trial, open and transparent proceedings, the ability to access legal representation, and the capacity to mount a legal defence. Anyone accused of a crime is also entitled to humane treatment while they await trial, a verdict and sentencing.

Australia had very few options to ensure Yang was being afforded these rights in China. Australian diplomats could only rely on the Agreement on Consular Relations ^[15], which guarantees consular access rights for anyone detained in either country.

Australia’s ambassador to China, Graham Fletcher, on his way to the court where Yang faced trial in 2021. Roman Pilipey/EPA

China has respected some of the minimum entitlements under this agreement, which has enabled consular staff to meet with Yang and monitor his wellbeing, though China restricted access during the peak periods of the COVID-19 lockdown.

However, Yang was not provided with any other rights he is entitled to under international law. At the time of his trial in 2021, the Law Council of Australia said ^[16]:

The seriousness of the charges against Dr Yang render the protracted deprivation of legal assistance even more egregious, falling well short of international fair trial standards.

And as Amnesty International notes ^[17], China has not put forth any evidence to support its assertion that Yang was, indeed, a spy.