China denies consular access to Spavor & Kovrig trials, breaching consular agreement

In a move that will surprise absolutely nobody, China will refuse to allow Canadian diplomats (or indeed, any foreigners, I expect) to attend the upcoming trials of Michael Kovrig and Michael Spavor.

This is as clear a violation of the Canada-China Consular Agreement as can possibly exist. No doubt they are justifying the exclusion on the grounds that state secrets are involved, but the grounds don’t matter; any denial of access is a breach of the Agreement. Art. 8(5) says, “A consular officer shall be permitted to attend the trial or other legal proceedings.” No exceptions. And Art. 8(7) says, “A consular officer shall comply with the law of the receiving State [that means China in this context] in performing the functions provided for in this Article. Nevertheless, the application of the law of the receiving State shall not restrict the implementation of the rights provided for in this Article.”

It’s extremely important to understand that to say that Art. 8(5) doesn’t apply because there are state secrets involved is like saying it doesn’t apply because it’s Tuesday. There is simply no exception there, and Art. 8(7) makes it clear that China can’t cite its own law as a justification for restricting the rights under Art. 8(5).

China successfully tried this same trick in 2010 in the case of Stern Hu, an Australian national. I discussed that here. The Australia-China Consular Agreement and the Canada-China Consular Agreement are the same in the relevant parts. The Australians acquiesced to this clear breach without a fuss, or at least without any public fuss. I don’t see any reason for Canada to do the same. At this point it seems a little late in the day to worry about hurting the feelings of the Chinese people.

Incidentally, students of international law will be interested in what the Ministry of Foreign Affairs said at the time of the Stern Hu case about China’s treaty obligations. Instead of denying that the consular agreement said what it said, the MOFA spokesman said, “Please don’t mix up the relationship between a country’s sovereignty, particularly its judicial sovereignty, and the Chinese-Australian Agreement on Consular Relations. The Chinese-Australian Agreement on Consular Relations must be premised on respect for China’s sovereignty and judicial sovereignty” (请你不要混淆一个国家的主权,特别是司法主权和《中澳领事协定》的关系。《中澳领事协定》应以尊重中国的主权和司法主权为前提).

What this statement fails to acknowledge is that the right to do exactly as you please is precisely what you give up when you enter into an international treaty. It is your sovereignty that makes your promise meaningful. Does the Ministry of Foreign Affairs still back this interpretation of what it means to sign a treaty–that any obligation can be waved off by saying the magic word “sovereignty”? Does China expect those with whom it signs treaties to treat their obligations similarly? This would certainly be a new direction in Chinese foreign policy.

China has already announced that it is not bound by any provisions of the Sino-British Joint Declaration on Hong Kong; now it is repeating through its actions its view that it is not bound by its consular agreements. I guess it’s not bound by any promises. Maybe the EU, about to sign on to a Comprehensive Agreement on Investment with China that contains promises it presumably expects China to keep, should pay a little attention.