AFM HE YAFEI ON DAUB, RUSSELL AND SHAO CASES, U.S.

C O N F I D E N T I A L SECTION 01 OF 02 BEIJING 006849 SIPDIS SIPDIS USDA/FAS FOR OA/YOST; OCRA/RADLER; OSTA/BRANT, WETZEL, HAMILTON STATE PASS USTR WINELAND USDA/OSEC FOR KEENUM/TERPSTRA/RAYMOND E.O. 12958: DECL: 10/25/2017 TAGS: PGOV PREL OFDP CASC CJAN EAGR ECON ETRD WTRO CH SUBJECT: AFM HE YAFEI ON DAUB, RUSSELL AND SHAO CASES, U.S. BEEF REF: 10/19/07 CARTIN-TESONE EMAIL Classified By: Ambassador Clark T. Randt, Jr., for reasons 1.4 (b/d). SUMMARY -------------- ¶1. (C) Assistant Foreign Minister (AFM) He Yafei, accompanied by two MFA lawyers, raised the Daub lawsuit against the PRC Consulate General in New York with the Ambassador on October 25 and asked the USG to intercede and stop enforcement of the recent court order. He said the Chinese would have no choice but to retaliate in case of any adverse enforcement actions by the court. Reiterating the Department Legal Advisor's recommendation (ref A),the Ambassador urged the PRC to retain legal counsel to represent and defend Chinese Government interests in the case. The Ambassador provided AFM He with an autopsy report for deceased Amcit Darren Russell, who died under questionable circumstances in Guangzhou in 2005, and asked that the case be reopened given the autopsy conclusion of homicide. AFM He said this case was "no small matter" and promised to look into it and provide "feedback." The Ambassador also urged the early release from prison of Amcit Jude Shao. In response to AFM He's suggestion that the United States "start the flow" of exported beef to China, the Ambassador underscored that China has an opportunity for leadership on this issue. END SUMMARY. ¶2. (C) The Ambassador and AFM He met October 25 to discuss a range of topics, including Burma, Darfur, nuclear nonproliferation, the DPRK, Iran and the P5-plus-1 Political Directors process (reported septels),as well as the Daub, Russell and Shao cases and U.S. beef exports reported here. DAUB CASE -------------- ¶3. (C) AFM He formally raised the Anne Daub lawsuit against the PRC Consulate General in New York, asserting that Daub had "launched a false accusation" and insisting that the default judgment awarded by the relevant court was against the norms of international law. Embassies and consulates in the United States should enjoy immunity from U.S. courts. The default order of $670,000 and possibility that Chinese state assets would be seized is most distressing, he said. The Assistant Foreign Minister stated the Chinese would have no choice but to retaliate in case of any enforcement actions by the court in this regard. It is the responsibility of the host country to ensure "such things will not happen." AFM He expressed his hope that the USG would ensure Chinese assets and property are "safe and sound" and not "sit tight and do nothing" in connection with an obvious case of immunity. The first step is to stop the court's enforcement, He said. ¶4. (C) The Ambassador underscored that the Foreign Sovereign Immunities Act of 1979 does not require sovereigns to submit to U.S. courts, but does require a "special appearance" to contest the court's jurisdiction. The foreign sovereign can assert the affirmative defense of sovereign immunity, but must appear before the court to assert the defense, the Ambassador emphasized. The Department of State cannot assert a defense on China's behalf. The Ambassador strongly urged the PRC to retain legal counsel to represent Chinese interests in this case. DARREN RUSSELL AUTOPSY PASSED; AFM HE TO INVESTIGATE -------------- -------------- ¶5. (C) Ambassador Randt provided AFM He with the autopsy report of Darren Russell, an American citizen who died in Guangzhou in 2005, and asked that the MFA ask the Procuratorate to reopen the case. The Ambassador said Chinese authorities at the time reported that he was the victim of a hit-and-run driver, but the autopsy calls that assessment into question. The autopsy concludes that Russell's injuries are consistent with a homicide, the Ambassador said. AFM He said this case was "no small matter" and promised China would look into it and provide "feedback." JUDE SHAO ASSISTANCE -------------- ¶6. (C) The Ambassador thanked AFM He for MFA assistance in the Jude Shao case, relaying that the Shanghai prison has sent his parole papers to the local court authorities and that he may be released soon. The Ambassador urged Shao's BEIJING 00006849 002 OF 002 early release. AMBASSADOR ASKS CHINA TO SHOW LEADERSHIP ON U.S. BEEF -------------- -------------- ¶7. (C) AFM He suggested to the Ambassador that the United States "start the flow" of exported beef to China. The Ambassador highlighted the recent visit of USTR's Ambassador Crowder and underscored that China has an opportunity for leadership on this issue by accepting all U.S. beef per the OIE certification. Randt